Luonnonsuojeluyhdistys Tapiola Pohjois-Savo – Kainuu ry v Risto Mustonen and Others.
Date: 2019-10-10
26


Article 12(1)(a) and (d) of the Habitats Directive requires the Member States to take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) to that directive in their natural range, prohibiting all forms of deliberate capture or killing of specimens of these species in the wild and deterioration or destruction of breeding sites or resting places (judgment of 17 April 2018, Commission v Poland(Białowieża Forest), C‑441/17, EU:C:2018:255, paragraph 230).
27


In order to comply with that provision, the Member States must not only adopt a comprehensive legislative framework but also implement concrete and specific protection measures. Similarly, the system of strict protection presupposes the adoption of coherent and coordinated measures of a preventive nature. Such a system of strict protection must therefore enable the actual avoidance of deliberate capture or killing in the wild, and of deterioration or destruction of breeding sites or resting places, of the animal species listed in Annex IV(a) to the Habitats Directive (judgment of 17 April 2018, Commission v Poland(Białowieża Forest), C–441/17, EU:C:2018:255, paragraph 231 and the case-law cited).
28


Even though Article 16(1) of the Habitats Directive allows Member States to derogate from the provisions of Articles 12 to 14 and Article 15(a) and (b) thereof, a derogation adopted on that basis, in so far as it allows those Member States to sidestep the obligations under the system of strict protection of natural species, is subject to the conditions that there is no satisfactory alternative and that that derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range.
29


It must be noted that those conditions relate to all situations covered by Article 16(1) of that directive.
30


It must also be noted that Article 16(1) of the Habitats Directive, which defines in a precise and exhaustive manner the circumstances in which Member States may derogate from Articles 12 to 14 and Article 15(a) and (b) thereof, constitutes an exception to the system of protection provided for by that directive, which must be interpreted restrictively (see, to that effect, judgments of 20 October 2005, Commission v United Kingdom, C‑6/04, EU:C:2005:626, paragraph 111 and of 10 May 2007, Commission v Austria, C‑508/04, EU:C:2007:274, paragraphs 110 and 128) and which imposes on the authority taking the decision the burden of proving that those conditions are present for each derogation (see, by analogy, judgment of 8 June 2006, WWF Italia and Others, C‑60/05, EU:C:2006:378, paragraph 34).
41


Therefore, it must be noted that a derogation decision must define the objectives relied upon in support of a derogation in a clear and precise manner and with supporting evidence. A derogation based on Article 16(1) of the Habitats Directive must be applied appropriately in order to deal with precise requirements and specific situations (see, by analogy, judgments of 8 June 2006, WWF Italia and Others, C‑60/05, EU:C:2006:378, paragraph 34 and of 11 November 2010, Commission v Italy, C‑164/09, not published, EU:C:2010:672, paragraph 25).
49


Further, it must be noted that Article 16(1) of the Habitats Directive requires the Member States to provide a clear and sufficient statement of reasons as to the absence of a satisfactory alternative by means of which the objectives relied upon in support of a derogation could be achieved (see, to that effect, judgment of 14 June 2007, Commission v Finland, C‑342/05, EU:C:2007:341, paragraph 31).
50


That obligation to provide a statement of reasons is not met when the derogation decision does not contain any reference to the absence of any other satisfactory solution or any reference to relevant technical, legal and scientific reports to that effect (see, by analogy, judgments of 16 October 2003, Ligue pour la protection des oiseaux and Others, C‑182/02, EU:C:2003:558, paragraph 14 and of 21 June 2018, Commission v Malta, C‑557/15, EU:C:2018:477, paragraphs 50 and 51).
51


In the light of the foregoing, it is for the competent national authorities, when authorising derogation permits such as those at issue in the main proceedings, to establish, taking account in particular of the best relevant scientific and technical evidence and in the light of the circumstances of the specific situation in question, that there is no satisfactory alternative that can achieve the objective pursued, in compliance with the prohibitions laid down in the Habitats Directive.
55


The favourable conservation status of those populations in their natural range is a necessary precondition in order for the derogations for which Article 16(1) provides to be granted (see, to that effect, judgment of 10 May 2007, Commission v Austria, C‑508/04, EU:C:2007:274, paragraph 115).
66


In that context, it must also be noted that, in accordance with the precautionary principle enshrined in Article 191(2) TFEU, if, after examining the best scientific data available, there remains uncertainty as to whether or not a derogation will be detrimental to the maintenance or restoration of populations of an endangered species at a favourable conservation status, the Member State must refrain from granting or implementing that derogation.
68


Secondly, as regards the effect of an unfavourable conservation status of a species on the possibility of authorising derogations under Article 16(1) of the Habitats Directive, the Court has already held that the grant of such derogations remains possible by way of exception where it is duly established that they are not such as to worsen the unfavourable conservation status of those populations or to prevent their restoration at a favourable conservation status. According to the Court, it is possible that the killing of a limited number of specimens may have no effect on the objective envisaged in Article 16(1) of the Habitats Directive, which consists in maintaining the wolf population at a favourable conservation status in its natural range. Such a derogation would therefore be neutral for the species concerned (judgment of 14 June 2007, Commission v Finland, C‑342/05, EU:C:2007:341, paragraph 29).
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However, it must be noted that the grant of such derogations by way of exception must be assessed also in the light of the precautionary principle, as referred to in paragraph 66 of the present judgment.
71


As regards the condition relating to the limited and specified number of certain specimens of the species to be taken or kept, it must be noted that that number will depend, in each case, on the population level of the species, its conservation status and its biological characteristics. That number must also be determined on the basis of rigorous scientific data which relate to geographic, climatic, environmental and biological factors as well as those enabling an assessment of the situation regarding the species’ reproduction and total annual mortality rate owing to natural causes (see, by analogy, judgments of 8 June 2006, WWF Italia and Others, C‑60/05, EU:C:2006:378, paragraphs 25 and 29 and of 21 June 2018, Commission v Malta, C‑557/15, EU:C:2018:477, paragraph 62).
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Finally, the condition that derogations under Article 16(1)(e) of the Habitats Directive be implemented under strictly supervised conditions means, in particular, that those conditions and the manner in which compliance with them is ensured can guarantee that the specimens of the species concerned are taken or kept on a selective basis and in limited numbers. Thus, for each derogation based on that provision, the competent national authority must ensure that the conditions laid down therein are satisfied before that derogation is granted and monitor its subsequent impact. The national legislation must ensure that the lawfulness of the decisions granting derogation permits under that provision and the manner in which those decisions are implemented, including as regards compliance with the accompanying conditions relating to, in particular, places, dates, numbers and types of specimens targeted, are subject to effective control in a timely manner (see, by analogy, judgment of 8 June 2006, WWF Italia and Others, C‑60/05, EU:C:2006:378, paragraph 47).