ClientEarth is challenging two decisions allowing the killing of up to 40 bison in Eastern Poland. The European bison, an extremely rare animal, is under strict protection. We believe the permits to kill them do not meet any of the conditions required by EU and Polish law, and have won the right to challenge them.
The permits were given as exceptions – also known as derogations – to EU nature laws protecting the bison. Both exceptions were based on general statements that the conditions necessary to allow the culling of bison were fulfilled. This is not sufficiently precise or justified.
How are rare animals like European Bison protected?
The EU’s nature conservation system is based on laws called the Birds and Habitats Directives.
What is characteristic for strict protection is that it applies to all life stages of a particular species, throughout the whole year – unlike other levels of protection which allow hunting at certain times of the year or when the animal is a certain age.
Different annexes to the Habitats Directive indicate the level of protection needed for particular species. Many species are listed on more than one annex, which makes them subject to a combination of protection instruments. Species in need of strict protection are listed in Annex IV, which contains 922 references in total.
The Directives outline prohibited actions including deliberate capture and killing, disturbance, destruction or taking of eggs, deterioration or destruction of breeding sites or resting places, keeping, transport and offering animals taken from the wild for sale or exchange.
Exemptions must be interpreted narrowly
However, the system of strict protection is not without exceptions. Prohibited activities are allowed in specific cases. Nevertheless, the European Commission makes clear that the derogation provisions must deal with precise requirements and specific situations. National authorities are therefore obliged to exhaustively analyse if all requirements are fulfilled before allowing an exception to nature protection laws.
Derogation can be granted only if a particular activity would not harm the overall aim of conserving biodiversity. What is more, three specific conditions must be met.
Firstly, an activity that is a subject of request must be justified by one of the reasons listed in the Habitats Directive, meaning it has to be undertaken:
- In the interest of protecting wild fauna and flora and conserving natural habitats;
- To prevent serious damage, in particular to crops, livestock, forests, fisheries and water and other types of property (importantly, it does not cover mere nuisance and normal business risk);
- In the interests of public health and safety, or for other imperative reasons of overriding public interest;
- For the purpose of research and education, of repopulating and reintroducing these species in its guidance; (it is worth noting that in the Commission guidance on strict protection, only non-lethal actions are referred to in this context);
- To allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens of Annex IV-species in limited numbers; (importantly, the Commission highlighted that it is difficult to conceive of circumstances where derogation would be justified for a species that has an at-risk conservation status).
Secondly, there must be no satisfactory alternative. The European Court of Justice takes a strict approach to this test, examining both the need for and purpose of the derogation, and asking for demonstration of compelling reasons to justify it. In general, this test consists of three aspects that need to be addressed. Namely, what is the problem or specific situation that needs to be fixed? Are there any other solutions? If so, will these resolve the situation for which the exception is sought?
Crucially, a solution is not automatically unsatisfactory only because it would cause greater inconvenience to or compel a change in behaviour by those benefitting from the derogation. It must be stressed that exceptions to the law are always supposed to be a last resort. A lack of alternative solutions must be proven using scientific and technical evidence. And implementation of a solution cannot go further than is necessary to solve a specific problem.
Thirdly, derogation cannot have a negative effect on a conservation status of the species concerned, which is defined based on population dynamics, range, habitat and long-term prospects. The more at-risk a conservation status is, the more difficult it is to justify exceptions to protective laws. In principle, result of an exception should be neutral or positive for a species. However, in response to human health disasters, it may in fact be negative.
Abuses of derogations
Unfortunately, in some cases derogations are misused and can serve as a way to allow prohibited activities for economic purposes.
For instance, in many EU countries, derogations for hunting are repeatedly granted over a longer period of time, most often annually, rather than on an individual basis as EU legislation and case law requires. There have also been numerous cases of unfounded exceptions allowing spring hunting for birds, in Finland and Hungary to name a few.
In Poland, unfounded decisions allowing bison culling seem to be a systemic problem. Each year they are issued at the request of the same forest districts, and usually with very similar ‘justification’. As a result, a significant number of bison are killed, even up to 20% of a population. This is unacceptable as it raises suspicions that the law may be bypassed to organise commercial bison hunts.
Nowadays, when the loss of species accelerates relentlessly, it is particularly important to do everything possible to protect the remaining species, especially those in danger of extinction. This is why authorities must apply exceptions to nature protection laws with great caution, and only in exceptional cases.