Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union, in the forty second meeting of the Standing Committee of the Convention on the conservation of European wildlife and natural habitats
Date: 2022-10-14
Institutions: Directorate-General for Environment, European Commission
Subjects: European convention, environmental cooperation, joint body (EU), protected area, protected species, protection of animal life, protection of plant life, revision of an agreement, rules of procedure, wolf

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   EUROPEAN COMMISSION  Brussels, 14.10.2022  COM(2022) 543 final 2022/0332 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union, in the forty second meeting of the Standing Committee of the Convention on the conservation of European wildlife and natural habitats  
 
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  forty  second  annual  meeting  of  the  Standing  Committee  of  the 
Convention on the conservation of European wildlife and natural habitats, Strasbourg, France, 
29  November  -  2  December  2022.  The  position  concerns  the  envisaged  adoption  by  the 
Standing  Committee  of  (1)  a  decision  concerning  an  amendment  to  Appendix  II  and 
Appendix  III  to  the  Convention  and  (2)  a  decision  concerning  proposed  amendments  to  the 
Rules of Procedure of the Standing Committee.   

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

The Convention on the conservation of European wildlife and natural habitats 

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 Union 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 requests. It has become customary for the Standing Committee to meet every year.   

The  Union’s  position  concerning  amendments  of  the  appendices  as  well  as  revision  of  the 
Standing Committee’s Rules of procedures is established by a decision of the Council based 
on a proposal from the Commission. 

2.3. 

The envisaged acts of the Standing Committee 

At its forty second meeting, the Standing Committee is expected to adopt two decisions with 
legal effects on the European Union. The first one concerns an amendment to Appendix II and 
Appendix  III  to  the  Agreement  and  the  second  one  consists  of  amendments  to  the  Rules  of 
procedures of the Standing Committee. 

2.3.1  Amendment to Appendix II and Appendix III 

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  months  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.  

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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2.3.2  Amendments to the Rules of Procedures of the Standing Committee 

In line with Article 13.6 of the Agreement, the Standing Committee has drawn up its Rules of 
Procedure.  According  to  Rule  21,  the  Rules  of  Procedure  may  be  amended  by  a  two-thirds 
majority of the votes cast by Contracting parties. The purpose of the envisaged act is to amend 
the Rules of Procedure. 

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

3.1. 

Amendment to Appendix II and Appendix III 

Switzerland has  proposed an amendment  of the appendices of the Agreement. The proposal 
envisages  lowering  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 listing of animal species under Appendix II or III is based on the 
available scientific data at the time of negotiation of the Agreement and the lists of mammals, 
birds, amphibians and reptiles threatened in Europe, drawn up by the European Committee for 
the Conservation of Nature and Natural Resources under the Council of Europe2. No criteria 
for further listing or delisting of species under the Appendices have been  adopted under the 
Agreement. 

Already  in  2018  Switzerland  had  proposed  a  similar  amendment,  seeking  to  allow  for  the 
management and control of wolves without the need to issue derogations under Article 9 of 
the Convention. The main argument given in support of the proposal was that the number of 
wolves  in  Europe  has  increased  substantially  since  the  Convention  entered  into  force  and  a 
strict  level  of  protection  is  therefore  unnecessary.  At  the  38th  meeting  of  the  Standing 
Committee, the Chair decided not to put the proposal to a vote, after noting that an important 
number of Parties were not ready to take a position on the matter. Switzerland announced they 
wished to return to the proposal once relevant reports would become available under both the 
Bern  Convention  (Reporting  under  Resolution  No.  8  (2012)  on  the  conservation  status  of 
species and habitats) and from the EU (Reporting under Articles 17 of the Habitats Directive3. 

The current proposal by Switzerland presents the same argumentation as the 2018 proposal. It 
is  based  on  the  positive  evolution  of  the  species  across  Europe  and  the  alleged  need  for 
harmonisation of the protection status under the Convention, due to the existing reservations 
by some Contracting Parties with respect to the wolf’s strict protection status. If adopted, the 
proposal  would  effectively  lead  to  the  lowest  protection  status  of  wolf  populations  across 
Europe, irrespective of their different conservation status and trends across the territory of the 
Parties and bio-geographic regions.  

Since 2018, updated information on the conservation status of the species is available.  

The most recent assessments according to  IUCN Red List criteria date back to 2018. Out of 
the nine mainly trans-boundary wolf populations in the European Union and its neighbouring 
countries, only three are of 'least concern' while six are 'vulnerable' or 'near threatened'4. The 
Western-Central  Alps  population  covering  Switzerland  and  the  Scandinavian  population 
covering Norway are both 'vulnerable' in the IUCN Red List Assessment. 

2 

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report 

the  Convention  on 

See  Explanatory 
to 
(https://rm.coe.int/16800ca431) 
Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, Official Journal 
L 206 , 22/07/1992 
https://www.iucnredlist.org/species/3746/144226239 

the  conservation  of  European  wildlife  and  natura  habitats 

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In addition, in 2020 the EU level assessment of conservation status for the wolf based on the 
reports  submitted  by  the  Member  States,  shows  that  the  species  is  still  in  unfavourable-
inadequate  conservation  status  in  6  out  of  7  EU  biogeographical  regions5.  Although  the 
population and range trends are generally improving, showing that the species is recolonising 
parts of its historical range, it has not  yet achieved a favourable conservation status in most   
Member  States  and  biogeographical  regions6.  The  species  remains  subject  to  significant 
threats  and  pressures,  including  high  levels  of  human-induced  mortality  (namely  from 
poaching).  

In  2021,  the  results  of  reporting  under  Resolution  No.  8  (2012)  of  the  Bern  Convention 
became available as well7. Reporting on conservation status for the period 2013-2019 was in a 
testing phase and not all Contracting Parties have contributed to this exercise. Switzerland and 
Norway,  range  countries  for  transboundary  wolf  populations  with  EU  member  states,  have 
sent  their  reports.  In  Switzerland,  the  wolf  is  reported  in  unfavourable-inadequate 
conservation  status  for  the  Continental  biogeographical  region,  one  of  the  country’s  two 
biogeographical  regions. Norway reported  an unknown conservation status  of the species in 
both its biogeographical regions.  

The  European  Union  fully  acknowledges  the  challenges  of  coexistence  between  people  and 
wolves arising from their recovery in numbers and range. Those challenges require vigilance 
and a continuous monitoring of the situation. Based on the results of such monitoring, further 
actions including an evalution of the current framework for the conservation of wolves, may 
need to be considered. The European Union will assess the situation, taking into account the 
outcome of the upcoming meeting of the Standing Committee. At this stage, however, given 
the latest data presented above, the proposal of Switzerland to lower the protection status of 
the wolf across Europe is not justified from a scientific and conservation point of view. The 
proposal is also not in line with the current legal protection status of the species granted by 
Annex IV of the Habitats Directive. The main objective of both the Bern Convention and the 
Habitats  Directive,  to  ensure  the  restoration  and  conservation  of  the  species  to  a  favourable 
conservation  status,  is  not  reached.  The  strict  legal  protection  status  appears  necessary  for 
supporting  efforts  to  remove  major  threats  to  the  species.  The  existing  legal  framework  is 
allowing an ongoing recovery of the species and provides the Parties with the necessary tools 
to address specific problems, including the possibility to issue derogations under Article 9 of 
the  Convention  (and  Article  16  of  the  Habitats  Directive)  in  accordance  with  the  required 
conditions8. 

Switzerland’s  proposal  would  harmonise  wolf  protection  under  the  Bern  Convention  by 
applying  the  lowest  protection  status  everywhere.  In  light  of  the  most  recent  conservation 
status assessments, it is advisable to enhance international cooperation among Parties sharing 
transboundary  wolf  populations,  which  could  potentially  lead  to  the  lifting  of  existing 
reservations and better coordinated conservation and management efforts. It is to be noted that 
Switzerland and Norway have made no reservation, hence there is no inconsistency between 
the legal  protection status  of the wolf in  those countries and the Member States with  which 
they share wolf populations. 

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https://nature-art17.eionet.europa.eu/article17/species/summary/?period=5&group=Mammals&subject=Canis+lupus&region 

In  2019,  Member  States  reported  the  wolf  to  be  in  a  favourable  conservation  status  in  18  out  of  39  national  parts  of 
biogeographical regions where the species was present. 
Document  T-PVS/PA(2020)03  –  Reporting  under  Resolution  No.  8  (2012)  (https://rm.coe.int/reporting-under-resolution-no-8-
2012-period-2013-2018-final-report/16809fad04)  and  the  national  summary  dashboards  presenting  data  reported  by  non-EU 
Contracting Parties to the Convention (https://www.coe.int/en/web/bern-convention/national-summary-dashboards) 
https://op.europa.eu/en/publication-detail/-/publication/a17dbc76-2b51-11ec-bd8e-01aa75ed71a1/language-en/format-
PDF/source-search 

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Therefore,  based  on  the  latest  scientific  data  currently  available  and  in  accordance  with  the 
current EU legal framework, the European Union should oppose the proposal by Switzerland 
to  move  the  Wolf  (Canis  lupus)  from  Appendix  II  on  “Strictly  protected  fauna  species”  to 
Appendix  III  on  “Protected  fauna  species”  to  the  Agreement.  It  will,  however,  keep  the 
evolution of the wolf population and the challenges for coexistence with people under review. 

3.2. 

Amendments to the Rules of Procedures of the Standing Committee  

In 2020 and 2021, due to the Covid-19 pandemic, the Standing Committee to the Agreement 
met  through  an  online  platform.  The  experience  was  positive  but  revealed  the  necessity  to 
adapt the Agreement’s existing rules, tools and decision-making processes to the new working 
methods and needs. The Secretariat, in cooperation with the Bureau to the Bern Convention, 
proposed  several  amendments  to  the  Rules  of  Procedures  of  the  Standing  Committee 
(document TPVS/Inf(2022)29), set up in line with Article 13.6 of the Agreement. 

In  addition  to  minor  editorial  changes  suggested  for  more  preciseness  and  consistency  of 
language, the proposed amendments concern: 

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Rule  1  –  Meetings:  introduction  of  the  possibility  for  remote  virtual  meetings  and 
the organisation of voting through electronic means; 

Rule 2 – Convocation: shortening of the period of notice for convening a Standing 
Committee meeting to six weeks (from two months); 

Rule  6  –  Documentation:  clarification  on  the  use  of  information  technology  for 
compiling and sending  meeting documents to  Contracting Parties, including for the 
needs of a written procedure or a simplified written procedure (silent procedure); 

Rule 7 – Quorum: clarification on what constitutes a quorum (more than half of the 
Contracting Parties); 

Rule  8  –  Voting:  Clarifications  on  the  modalities  of  voting  and  voting  through  a 
written procedure; 

Rule 11 – Chair: Clarifications on the voting procedure and majority for the election 
of Bureau members, in case a third ballot is required; 

Rule 19 – Bureau: inclusion of a quorum requirement for Bureau deliberations and 
inclusion of provision 19 c) clarifying the Bureau’s specific functions; 

Appendix  1  on  Rules  applicable  to  on-the-spot  appraisals:  Inclusion  of  a 
requirement  for  the  Contracting  Party  and  the  complainant  to  agree  on  the  expert 
appointed  for  the  mission  and  on  the  terms  of  reference  drawn  for  it  as  well  as  a 
requirement  for  the  host  country  to  bear  the  costs  for  local  transportation, 
interpretation and translation of documents; 

Appendix 2 – Rules applicable to mediation: Inclusion of similar requirements as 
for the on-the-spot appraisals.  

All  the  proposed  amendments  which  concern  the  possibility  of  holding  remote  virtual 
meetings and written procedures are in line with practices in other Multilateral Environmental 
Agreements  and  are  necessary  to  ensure  the  Agreements’  working  methods  are  adapted  to 
virtual work. 

The  shortening  of  the  period  of  notice  for  convening  a  Standing  Committee  meeting  to  six 
weeks is proposed to allow for more flexibility, should the need for an extraordinary Standing 

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Committee meeting arise. As in practice the Agreement’s main decision-making body meets 
once a year, the use of this provision is expected to be only exceptional.  

The proposed amendments clarifying the functions of the Bureau, the responsibilities of host 
countries  for  on-the-spot  enquiries  and  mediation  visits  and  the  required  agreement  on  the 
terms of reference and expert selection derive from existing practices within the Agreement’s 
functioning. These so-far unwritten rules have been implemented extensively and have been 
widely accepted by the Contracting Parties.  

Therefore,  the  European  Union  should  support  all  proposed  amendments  to  the  Rules  of 
Procedure of the Standing Committee. 

In  view  of  the  above,  it  is  necessary  for  the  Council  to  take  a  decision  for  the  purpose  of 
establishing the position to be adopted on behalf of the Union with a view to the forty-second 
meeting of the Standing Committee on both the proposal for amendment of the Agreement’s 
Appendices  and  the  proposlas  for  amendments  to  the  Rules  of  Procedures  of  the  Standing 
Committee.  The  proposals  for  amendment  to  the  Rules  of  Procedures  will  not  require  a 
change of existing Union law. 

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’9. 

4.1.2.  Application to the present case 

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

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

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

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 

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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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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 Article 192(1) TFEU.  

4.3. 

Conclusion 

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

5. 

PUBLICATION OF THE ENVISAGED ACT 

As the acts of the Standing Committee would amend Appendices II and III of the Agreement 
and  the  Rules  of  Procedures  of  the  Standing  Committee,  it  would  be  appropriate  to  publish 
them in the Official Journal of the European Union, if they are adopted.  

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2022/0332 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union, in the forty second meeting 
of the Standing Committee of the Convention on the conservation of European wildlife 
and natural habitats 

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) 

(8) 

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/EEC10 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  forty-second  meeting  on  29  November  –  2 
December, 2022, is to adopt a decision on amending Appendix II and Appendix III to 
the Agreement. 

Pursuant  to  Article  13.6  of  the  Agreement,  the  Standing  Committee  has  drawn  its 
Rules  of  Procedure  and,  in  line  with  Rule  21,  the  Standing  Committee  can  amend 
them.  

The Standing Committee, at its forty-second meeting on 29 November – 2 December, 
2022, is also called to adopt amendments to its Rules of Procedures. 

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

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. 

Based  on  current  data,  lowering  the  protection  status  of  all  wolf  populations  is  not 
justified from a scientific and conservation point of view. The conservation status of 
the  species  remains  divergent  across  the  continent,  with  a  favourable  conservation 
status assessment in only 18 out of 39 national parts of biogeographical regions in the 
EU.  This  is  confirmed  by  the  latest  available  scientific  information  on  conservation 
status  of  the  species,  resulting  from  the  reporting  under  Article  17  of  the  Habitats 
Directive  and  under  Resolution  No.  8  (2012)  of  the  Bern  Convention.  Continuing 
threats  to  the  species,  including  emerging  ones  such  as  border  fences  and  wolf-dog 
hybridisation, also call for maintaining the strict protection status. 

10 

OJ L 38, 10.2.1982, p. 1. 

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(9) 

Therefore, the Union should oppose the Swiss proposal. 

(10)  The  Secretariat  of  the  Agreement,  in  cooperation  with  the  Bureau,  proposed  several 
amendments  to  the  Rules  of  Procedures  of  the  Standing  Committee,  in  particular  to 
adapt  the  Agreement’s  working  methods  and  procedures  to  new  virtual  working 
methods and tools. 

(11)  The proposed amendments to the Rules of Procedure correspond to practices already 
in  place  in  other  Multilateral  Environmental  Agreements  or  to  existing  practices 
within the Agreement which are widely accepted. 

(12)  Therefore,  the  Union  should  support  the  proposed  amendments  to  the  Rules  of 

Procedures. 

HAS ADOPTED THIS DECISION: 

Article 1 

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

(1) 

to  oppose  the  proposal  to  move  the  Wolf  (Canis  lupus)  from  Appendix  II  on 
“Strictly  protected  fauna  species”  to  Appendix  III  on  “Protected  fauna 
species”; 

(2) 

to support the proposed amendments to the Rules of Procedure of the Standing 
Committee contained in document TPVS/Inf(2022)29. 

Article 2 

In  the  light  of  developments  at  the  fourty  second  meeting  of  the  Standing  Committee, 
refinement of the position referred to in Article 1.2 may be agreed to by the representatives of 
the Union in consultation with the Member States during on-the-spot coordination meetings, 
without a further decision of the Council. 

This Decision is addressed to the Commission. 

Done at Brussels, 

Article 3 

For the Council 
The President 

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