A derogation from that prohibition to prevent economic damage is only to be granted if the wolf population is at a favourable conservation status, which is not the case in Austria
Several animal protection and environmental organisations[1] are contesting before the Regional Administrative Court of Tyrol (Austria) the fact that the Provincial Government of Tyrol has temporarily authorised[2] the killing of a wolf[3]. The latter had previously killed around 20 sheep on Alpine pastures.
Wolves are, according to the Habitats Directive[4], strictly protected. They are therefore, in principle, prohibited from being hunted. However, given the development of the wolf population in Austria and the fact that certain Member States benefit from exceptions, the Regional Administrative Court of Tyrol harbours doubts as to the validity of that prohibition. It therefore questioned the Court of Justice in that regard. In the event that the Court of Justice should consider the prohibition to be valid, the referring court asks the Court of Justice to specify the conditions for derogating from that prohibition and therefore to authorise the slaughter of a specimen.
The Court of Justice states that the examination has not revealed any factor which could affect the validity of the strict protection of wolves in Austria.
It recalls that, when it joined the European Union in 1995, Austria had not expressed any reservation regarding that protection. To the extent that the Austrian Government takes the view that, following the development of the wolf population in Austria, the EU legislature should, in the meantime, have lifted their strict protection in Austria, it is, in principle, entitled to lodge an appeal for failure to act, which it has not done to date. The Court of Justice emphasises, however, that the European Union is linked to the Berne Convention[5], which strictly protects wolves. Moreover, the Austrian Government has itself admitted that the wolf population in Austria is not at a favourable conservation status.
In order for the Austrian authorities to be able to grant a derogation from the prohibition of wolf hunting in order to prevent serious damage to, for example, livestock farming, they must ensure that the following conditions are met:
1. The wolf population must be at a favourable conservation state both at local level (in the Province of Tyrol) and at national level (Austria), which is not the case. Furthermore, even if this were the case, it would still be appropriate, to the extent that available data allows, to ensure that this also applies at cross-border level.
2. The derogation must not harm the maintenance of the favourable conservation status at any of these three levels [6].
3. Serious damage[7] must be, at least largely, attributable to the species targeted. Indirect damage which is not attributable to that single wolf and which results from the abandonment of farms and the reduction in the total number of herds is not sufficient.
4. There is no satisfactory alternative. In that regard, the economic implications of other possible alternatives, such as Alpine pasture protection measures[8], must also be taken into account. However, they cannot be decisive. In addition, alternatives must be balanced with the general objective of maintaining or restoring a favourable conservation status of the wolf population.
[1] Umweltverband WWF Österreich, ÖKOBÜRO – Allianz der Umweltbewegung, Naturschutzbund Österreich, Umweltdachverband and Wiener Tierschutzverein.
[2] For the period from 29 July to 31 October 2022. According to the Austrian Government, the wolf has not been able to be killed.
[3] It concerns the wolf 158MATK
[4] Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, as amended by Directive 2013/17/EU of 13 May 2013.
[5] Convention on the Conservation of European Wildlife and Natural Habitats, signed on 19 September 1979 in Berne (Switzerland).
[6] In the event that the conservation status remains favourable at local and national levels, the assessment at cross-border level must be carried out to the extent possible. The Court observes that Switzerland and Liechtenstein could be taken into consideration, given that they are subject to compliance with the Berne Convention.
[7] It is not necessary that this damage has already been sustained, a high probability of it occurring is sufficient.
[8] The Regional Administrative Court of Tyrol refers in that regard to the erection of fences, the use of sheepdogs or the accompaniment of herds by shepherds.
:: Judgment of the Court in Case C-601/22 | WWF Österreich and Others
