Case C‑436/22

Asociación para la Conservación y Estudio del Lobo Ibérico (ASCEL)

v

Administración de la Comunidad de Castilla y León

(Request for a preliminary ruling
from the Tribunal Superior de Justicia de Castilla y León)

Judgment of the Court (First Chamber) of 29 July 2024

(Reference for a preliminary ruling – Conservation of natural habitats and of wild fauna and flora – Directive 92/43/EEC – Articles 2, 4, 11, 12, 14, 16 and 17 – System of strict protection for animal species – Canis lupus (wolf) – Cynegetic exploitation – Assessment of the conservation status of populations of the species concerned – Conservation status of that species ‘unfavourable-poor’ – Exploitation incompatible with the maintenance or restoration of the species at a favourable conservation status – Taking into account of all the most recent scientific data)

1. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Animal species of Community interest – Inclusion – Effect – Presumption that the conservation of a species is favourable – Absence – Determination of the conservation status – Criteria

   (Council Directive 92/43, as amended by Directive 2013/17, Arts 1(i), 2(1) and (2), 11, 12 and 14 (1), and Annex V)

   (see paragraphs 50, 51, 60, 61)

2. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Animal species of Community interest – Management measures – Member States’ discretion – Limits – Restriction of the cynegetic exploitation of a species – Whether permissible – Condition – Need for a measure to maintain or restore the species at a favourable conservation status

   (Council Directive 92/43, as amended by Directive 2013/17, fifteenth recital and Arts 2(2), 11 and 14, and Annex V)

   (see paragraphs 52-58, 69, 70)

3. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Obligation to carry out surveillance of the conservation status – Scope – Possibility of authorising the cynegetic exploitation or hunting of a species in the absence of effective surveillance – Precluded

   (Council Directive 92/43, as amended by Directive 2013/17, Arts 1, 2, 11, 14 and 17, and Annexes II, IV(a), and V)

   (see paragraphs 59, 62-66)

4. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Animal species of Community interest – Unfavourable conservation status of a species – Consequences – Observance of the precautionary principle – Obligation for Member States to refrain from authorising hunting – Condition – Uncertainty as to the risks that exist for the maintenance of a species at a favourable conservation status – Criteria for assessment

   (Arts 191(2), 192 and 193 TFEU; Council Directive 92/43, as amended by Directive 2013/17, Arts 1, 2, 11, 14 and 17, and Annexes II, IV(a) and V)

   (see paragraphs 71-74, 76-78 and operative part)

5. Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Protection of the species – Derogations – Preconditions for the adoption of derogating measures – Maintenance of the populations of the species concerned at a favourable conservation status – Conditions for the grant of derogations by way of exception

   (Council Directive 92/43, as amended by Directive 2013/17, Arts 12 and 16)

   (see paragraph 77)

Résumé

Hearing a request for a preliminary ruling from the Tribunal Superior de Justicia de Castilla y León (High Court of Justice, Castile and Leon, Spain), the Court of Justice rules on whether it is possible to grant hunting permits for the canis lupus species, commonly known as ‘the wolf’, where the conservation status of that species has been declared ‘unfavourable-poor’ for the purpose of the Habitats Directive. ( 1 )

In 2019, the report sent by the Kingdom of Spain to the European Commission, pursuant to Article 17 of the Habitats Directive, for the period 2013-2018, stated that the wolf had an ‘unfavourable-poor’ conservation status in the Mediterranean, Atlantic and Alpine regions, the first two of those regions including the territory of Castile and Leon.

That said, under the national legislation, the wolf was designated as ‘a species of game’, and therefore ‘huntable’, north of the River Douro. In particular, by decision of 9 October 2019, the Directorate-General of Natural Heritage and Forestry Policy of Castile and Leon approved the Plan for the local exploitation of wolves in the hunting grounds situated north of the River Douro in Castile and Leon for the period from 2019 to 2022.

Hearing an action brought against that decision, the referring court asks the Court of Justice whether the Habitats Directive, and more specifically Article 14 thereof, ( 2 ) precludes legislation of a Member State under which the wolf is designated as a species whose specimens may be hunted in a part of the territory of that Member State where it is not covered by the strict protection provided for in Article 12(1) of that directive, whereas its conservation status has been considered to be unfavourable throughout the territory of that Member State.

Findings of the Court

In the first place, the Court of Justice recalls that, under Article 12 of the Habitats Directive, read in conjunction with Annex IV(a) thereto, the wolf is one of the species ‘of Community interest’ for which ‘strict protection’ must be ensured, within the meaning of that article. That strict protection regime covers, in particular, the Spanish wolf populations situated south of the River Douro, which are expressly included in Annex II to the Habitats Directive, as a ‘species of Community interest whose conservation requires the designation of special areas of conservation’. The Spanish wolf populations situated north of that river are, for their part, included in Annex V to the Habitats Directive, as an animal species of Community interest whose taking in the wild and exploitation may be subject to management measures and which therefore fall within the scope of Article 14 of that directive.

In that regard, the fact that an animal or plant species of Community interest is included in Annex V to the Habitats Directive does not mean that its conservation status must, in principle, be regarded as favourable. Indeed, apart from the fact that it is the Member States that communicate the status of those species in their territory to the Commission, that inclusion means only that, in the light of the surveillance obligation laid down in Article 11 of that directive and in order to secure its objective, that species ‘may’ be subject to management measures, unlike the species included in Annex IV(a) to that directive which benefit in any event from the system of strict protection.

In the second place, as regards the management measures to which the species included in Annex V to the Habitats Directive may be subject, cynegetic exploitation may be restricted or prohibited if that is necessary to maintain the species concerned at, or restore it to, a favourable conservation status.

First, those measures may regard access to certain property, the prohibition of the taking of specimens in the wild and exploitation of certain populations, or even the establishment of systems of quotas. Therefore, although they include hunting rules, the aforementioned measures are such as to restrict, and not to extend, the taking of the species concerned.

Second, the discretion of Member States in determining whether it is necessary to adopt such measures is limited by the obligation to ensure that the taking in the wild of specimens of a species and their exploitation are compatible with that species being maintained at a favourable conservation status.

However, where an animal species has an unfavourable conservation status, the competent authorities must 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.

The adoption of measures based on that article is, in any event, permissible only if they contribute to the maintenance of the species concerned at, or their restoration to, a favourable conservation status. Thus, if the analyses carried out within the Member State concerned in respect of the species listed in Annex V to the Habitats Directive provide results such as to demonstrate the need for intervention at national level, that Member State may limit, and not extend, the activities referred to in the aforementioned article, in order to ensure that the taking from the wild of specimens of those species is compatible with the objectives of that directive. The restriction or prohibition of hunting may then be regarded as being a necessary measure in that regard. Such a measure is necessary in particular where the conservation status of the species concerned is unfavourable primarily because of the loss of specimens. However, even if these losses are mainly due to other reasons, it may be necessary not to authorise hunting that would cause additional losses.

Indeed, 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 the exploitation of a species of Community interest is compatible with the maintenance of that species at a favourable conservation status, the Member State concerned must refrain from authorising such exploitation.

In the third place, the Court states that, under Article 11 of the Habitats Directive, Member States are required to undertake surveillance of the conservation status of the natural habitats and species referred to in Article 2 of that directive, with particular regard to priority natural habitat types and priority species. That surveillance is essential in order to ensure compliance with the conditions laid down in Article 14 of that directive and to determine the need to adopt measures ensuring that the exploitation of that species is compatible with the maintenance at a favourable conservation status, and constitutes in itself one of the measures necessary to ensure the conservation of that species. Consequently, a species cannot be the subject of cynegetic exploitation and hunted if effective surveillance of its conservation status is not ensured.

In that regard, the assessment of the conservation status of a species and of the appropriateness of adopting measures based on Article 14 of the Habitats Directive must be carried out taking into account not only the report drawn up every six years by the Member States pursuant to Article 17 of that directive, but also the most recent scientific data obtained through that surveillance. Those assessments must be made not only at local level, but also at the level of the biogeographical region, and even at cross-border level. In addition, that surveillance must be undertaken with particular care where the species is listed, in connection with certain regions, among the animal species of Community interest whose conservation requires the designation of special areas of conservation, ( 3 ) or which are in need of strict protection ( 4 ) and, in connection with neighbouring regions, among species of Community interest whose taking and exploitation may be subject to management measures. ( 5 )

In the light of all the foregoing considerations, the Court concludes that Article 14 of the Habitats Directive precludes legislation of a Member State authorising the hunting of wolves in a part of the territory of that Member State where it is not covered by strict protection, whereas the conservation status of that species in that Member State is classified as ‘unfavourable-poor’. It is appropriate to take into account, in that regard, the report drawn up every six years pursuant to Article 17 of that directive, all the most recent scientific data, including those obtained from the surveillance provided for in Article 11 of that directive, and the precautionary principle enshrined in Article 191(2) TFEU.

( 1 ) 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) (‘the Habitats Directive’).

( 2 ) See Article 14(1) of the Habitats Directive: ‘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’.

( 3 ) See Annex II to the Habitats Directive.

( 4 ) See Annex IV(a) to the Habitats Directive.

( 5 ) See Annex V to the Habitats Directive.