Opinion of Advocate General Ćapeta delivered on 18 January 2024

1. Admissibility

37. Before entering into the merits of such a claim, it is first necessary to shortly address the question of admissibility of the first question, which was debated at the hearing.

38. The applicant NGOs consider that the answer to the first question would have no impact on the dispute in the main proceedings. The Council also considers the question inadmissible. In its view, the dispute in the main proceedings concerns Article 16 of the Habitats Directive, rather than Article 12 thereof, thus making the latter provision inapplicable to the dispute in the main proceedings.

39. In contrast, the Provincial Government of Tyrol, the Austrian, Finnish and Swedish Governments, as well as the Commission argued in favour of the admissibility of the first question.

40. In particular, the Austrian Government claimed that a possible finding of the Court that Article 12 read together with Annex IV to the Habitats Directive is invalid would certainly have an impact on the dispute before the national court, as that provision would then not be applicable.

41. I agree with the Austrian Government on this point. The first question is, therefore, admissible.

2. Arguments relating to the breach of equality

42. Article 4(2) TEU states that ‘the Union shall respect the equality of Member States before the Treaties […]’.

43. The case-law relating to the requirement of equality when applied to Member States is scarce.⁽¹⁷⁾

44. In my view, the equality of Member States under EU law should be understood as a specific expression of the general principle of equal treatment, which requires that comparable situations must not be treated differently and different situations must not be treated alike unless such treatment is objectively justified.⁽¹⁸⁾

45. In the area of environmental policy, Article 191(3) TFEU requires, as pointed out by the Commission, that the European Union takes into consideration different environmental aspects in various EU regions. Therefore, achieving the goals of EU environmental policy requires treatment of each Member State which is appropriate for its specific situation.⁽¹⁹⁾

46. Nevertheless, if two Member States find themselves in a similar situation, but are treated differently, this would result in a breach of the principle of equality.⁽²⁰⁾

47. The exclusions provided for in Annex IV to the Habitats Directive reflect the specific situation in each of the exempted Member States.⁽²¹⁾ In addition, in most cases, as explained in point 33 of this Opinion, exemptions are the result of accession negotiations.⁽²²⁾

48. The finding of unequal treatment requires that a Member State is in a comparable situation with another Member State but is treated differently.

49. Yet, neither the Austrian Government nor the Provincial Government of Tyrol have provided any evidence as to why the Court should consider Austria to be in a comparable situation to another Member State exempted from Annex IV. The only argument they offered is that the wolves started to return to Austria, which, after all, is one of the aims of the Habitats Directive.

50. Therefore, I do not find that in the present case any unequal treatment of Austria in relation to other Member States has been established.

3. Arguments relating to the breach of Article 19 of the Habitats Directive

51. Another argument of invalidity relating to the strict protection of wolves in Austria, relying on Article 19 of the Habitats Directive rather than the breach of the principle of equality, was raised and should therefore be addressed in this Opinion.

52. Under Article 19 of the Habitats Directive, the Council, on a proposal from the Commission, should adjust annexes to that directive according to the technical and scientific progress. The failure to initiate that process and adjust Annex IV to the current situation in Austria, according to the Austrian Government and the Provincial Government of Tyrol, leads to the invalidity of that annex, which the Court should declare in the present case.

53. It is true that thanks to the Habitats Directive,⁽²³⁾ wolves are indeed returning to Austria. Nowadays, that causes problems for the Alpine livestock breeding, where, it is claimed, efficient measures for the protection of sheep and other livestock from the attack of wolves are difficult, if not impossible. Under such circumstances, does the Commission, as the Austrian Government submits, have the duty to initiate a procedure under Article 19 of the Habitats Directive to exempt Austria from Annex IV?

54. I am not persuaded by that argument.

55. If a species could arguably be removed from the protective annex, their conservation status would need to be favourable. Furthermore, to comply with the precautionary principle, removal of a species from the protective annex could happen once their favourable conservation status is certain (that is to say, not a short-term fluctuation), and there would be reasonable evidence that the factors that caused it to have an unfavourable status no longer apply.⁽²⁴⁾ On the contrary, as mentioned previously, the conservation status of wolves in Austria is far from favourable (see point 27 of this Opinion). In such circumstances, the Commission might, thus, simply not have found good reason to start the procedure set out by Article 19 of the Habitats Directive and to remove Austria from Annex IV thereto.

56. Furthermore, as submitted by the Commission and the Council, neither the European Union nor Austria have entered, in relation to wolves in Austria, a reservation to Annex II of the Bern Convention,⁽²⁵⁾ under which wolves are subject to strict protection. Given that the European Union is a party to that convention,⁽²⁶⁾ exempting Austria from Annex IV to the Habitats Directive could result in a breach of the EU’s obligations under international law.

57. I, therefore, consider that, under the current circumstances, Austria, or part of its territory, cannot be excluded from Annex IV to the Habitats Directive.

58. However, if a Member State considers that the Commission had a duty to initiate a procedure for the amendment of the Annex IV to the Habitats Directive, but has failed to do so, it has at its disposal a remedy provided for by the Treaty – an action for declaration of failure to act, set out in Article 265 TFEU. However, Austria has not initiated that procedure.

59. The case-law already explained that a national court cannot ask for the Court to rule, in a preliminary ruling procedure, that an institution has failed to act.⁽²⁷⁾

60. Therefore, the possible failure of the Commission to initiate the amendment of Annex IV to the Habitats Directive in respect of Austria on the basis of Article 19 of that directive cannot be a reason for finding the invalidity of that annex in the context of the preliminary ruling procedure.

61. There might be reason to rethink the modalities of cohabitation between people and large carnivores.⁽²⁸⁾ However, the Court is not the proper forum for that. That type of question should be addressed in a legislative process and the Commission seems to have taken the first step in that direction.⁽²⁹⁾

62. The legislative choice expressed in the Habitats Directive as it is in force at the present moment enjoins Austria to uphold the obligations requiring the strict protection of the wolf population in the entirety of its territory. It is not within the Court’s competence to rewrite legal provisions, including Annexes such as those forming a part of the Habitats Directive, or to circumvent existing procedures, such as the one provided for by Article 19.

63. I, therefore, propose that the Court answer the first question as follows: Exempting certain Member States from Annex IV to the Habitats Directive does not amount in itself to unequal treatment of a Member State that has not been given such an exemption. The present case has disclosed no factor such as to affect the validity of Article 12(1) of the Habitats Directive, read in conjunction with Annex IV thereto, due to a breach of Article 4(2) TEU.

1. The territorial scope of the assessment of the state of conservation of a species in a natural range under Article 16(1) of the Habitats Directive (the second question)

68. The second question of the referring court requires an interpretation of the overarching condition set out by Article 16 of the Habitats Directive to allow for a derogation, according to which derogatory measures are possible only if they are not detrimental to the maintenance of the population of wolves at a favourable conservation status in their natural range. The referring court wishes to ascertain whether, when assessing the fulfilment of that condition, it has to take into consideration only the territory of the Member State concerned or the larger cross-border region in which the given population of wolves live, in this case the Alps region (see point 26 of this Opinion).

69. In LSL Tapiola, the Court explained that the national authority granting a derogation must carry out a two-step assessment.⁽³²⁾ The first step is to establish the conservation status of a species, and the second step is to assess how the derogation will affect the conservation status of that species.⁽³³⁾

70. In principle, the derogation may be allowed only if the conservation status of a species (established at step one) is favourable.⁽³⁴⁾ However, the Court also recognised that exceptionally, the derogation may be granted even if the conservation status of a species is not favourable, where it is duly established that that derogation is not such as to worsen such unfavourable status or to prevent the restoration of a species at a favourable conservation status.⁽³⁵⁾ Thus, exceptionally, the competent authority can proceed to the second step even if, at the first step, it did not find that the conservation status of a species is favourable.

71. The question asked by the referring court about the territory that is to be taken into consideration for assessing the possibility of derogatory measures seems relevant to me for each of the two steps separately.

72. In relation to the first step, the Provincial Government of Tyrol and the Austrian and Finnish Governments argue that the territories of third countries, such as Switzerland and Liechtenstein, should be taken into account to ascertain the status of conservation of wolves in the Alps region. Taking into account the entire natural range of the subpopulation of wolves at issue, which includes the population in those two countries, the conservation status of that subpopulation would be favourable. Such a finding would lead to the conclusion that it does not matter that in Austria, taken in isolation, that status is not favourable.

73. In LSL Tapiola, the Court has, to my understanding, explained that even if a cross-border territory should also preferably be taken into account, the conclusion concerning favourable status cannot be reached without establishing such status on the national territory.⁽³⁶⁾ In other words, the favourable status has to exist first and inevitably at the national level. If a favourable status exists at the national level, unfavourable status on the larger cross-border level might still put into question the possibility to adopt a derogatory measure. However, conversely, the unfavourable national status cannot be remedied through favourable status at the cross-border level.

74. My reading of that judgment is, thus, not that the Court intended to say, as understood by the referring court, that if the favourable status exists for the species when assessed in its entire natural range, which embraces several countries, it does not matter that the conservation status is still unfavourable in Austria. To my mind, the Court never meant to say that the unfavourable status of the wolves’ population in Austria can be remedied by the favourable conservation status when considered in relation to the larger Alps region.⁽³⁷⁾

75. A different interpretation could have a negative impact on the efforts made by Member States to adopt adequate measures to improve the conservation status of a species on their territory. It could have the effect of hiding an unfavourable status in a Member State and giving the false impression that the conservation of a species is secured.

76. Additionally, as the Commission pointed out at the hearing, the national level is the only level at which Member States have reliable data.⁽³⁸⁾ The Commission admitted that in an ideal situation, a state of conservation of a species would have to be assessed at its natural geographical range, however, that does not yet seem possible. That is the additional reason as to why the favourable status must apply at a local and national level in the first place, before assessing the situation on a larger level.

77. Thus, only after the national scale of assessment has delivered a favourable conservation status can the perspective of assessment zoom out.

78. The purpose of taking into consideration the conservation status at a cross-border level is to prevent a Member State from derogating even if the status of a species is favourable in its territory. In that respect, whether a third country is party to the Bern Convention or not should not play a role. The interest of the Habitats Directive is to preserve biodiversity, which is also dependent on the state of nature in third countries, and whether they are committed to a high level of protection of nature or not. Therefore, unfavourable status of a species in a third country might influence a decision (not) to take the derogation measure despite there being a favourable national conservation status. In that circumstance, I do not see why the data from Switzerland and Liechtenstein would not be taken into account for such a purpose, if the national authorities have access to them.

79. Given that the data submitted to the Court do not suggest that the conservation of wolves in Austria is at a favourable level (see point 27 of this Opinion), it is possible to proceed to the second step only under the exception introduced in the Commission v Finland, and restated in LSL Tapiola (see point 69 of this Opinion). That exception permits a Member State to derogate from the strict protection of wolves although the conservation status of wolves in that state is unfavourable, if such a measure cannot alter the status of conservation, that is, if the measure is neutral in relation to the wolves’ population.

80. When applying that exception, it is necessary to answer, at the second step, which territory should be taken into consideration in order to conclude whether the impact of the derogation would not worsen a status that is already unfavourable or whether it would prevent the restoration of a species at a favourable conservation status in future.

81. Some guidance on that question was already given by the Court in LSL Tapiola. Relying on the Opinion of Advocate General Saugmandsgaard Øe,⁽³⁹⁾ the Court explained that the assessment of the impact of a derogation at the level of the territory of a local population is generally necessary in order to determine its impact on the conservation status of the population concerned on a larger scale.⁽⁴⁰⁾

82. Therefore, it is again necessary to firstly assess the impact of the culling of a singular wolf for the local Alpine population in Tyrol. Adopting a derogation measure is possible only if this results in a finding that such a measure is neutral in comparison to the status of the wolf population in the Austrian Alps.

83. Is that sufficient? Or, is it still necessary to assess, as much as this is possible, the impact that such a measure would have on the subpopulation to which that wolf belongs in its entire natural cross-border range? After all, derogations in one jurisdiction can be detrimental to the same species in a neighbouring jurisdiction.⁽⁴¹⁾

84. The answer to that question must take into consideration the current reality in which reliable information about the status of wolves in other countries cannot yet be gathered. In those circumstances, I am of the opinion that an obligation can be imposed on national authorities only when assessing the impact of derogatory measure on the local/national population.

85. However, if those authorities possess data from which they can conclude that the proposed measure might add to the deterioration of the conservation status of the subpopulation in another country or in general, even if it would be neutral for the local conservation status, they cannot ignore such data but must take that data into consideration and reject the derogatory measure.

86. In the present case, if the available data revealed that culling wolf 158MATK would not cause any impact on the population in Austria (because that wolf was, for example, only passing through), but could have a negative impact for a pack that lives cross-border, such knowledge should prevent the adoption of the derogatory measure.

87. I, therefore, propose that the Court reply that Article 16(1) of the Habitats Directive must be interpreted as requiring that the assessment whether a species is at a favourable conservation status and whether derogation measures negatively impact the possibility to achieve or maintain favourable conservation status, has to be undertaken on the basis of a local and national territory, even if the natural range of the population at issue encompasses a larger, cross-border biogeographical region. However, if those authorities possess data from which they can conclude that the proposed measure might deteriorate the conservation status of the subpopulation in another country or in general, even if it would be neutral for the local conservation status, they cannot ignore such data, but must take that data into consideration and reject the derogatory measure.

2. Does serious damage also include indirect damage to the economy? (the third question)

88. By its third question, the referring court asks, in essence, whether the notion of serious damage in Article 16(1)(b) of the Habitats Directive includes future damage, which cannot be attributed to the specimen who is the subject of a derogation.

89. It should be recalled at the outset that a derogatory measure can only be adopted in order to fulfil one or more objectives provided for in Article 16(1)(a) to (e). The measure at issue in the present case was adopted to prevent serious damage as envisaged by letter (b).

90. Article 16(1)(b) of the Habitats Directive allows for derogations in order ‘to prevent serious damage, in particular to crops, livestock, forests, fisheries and water and other types of property’.

91. It is, therefore, in the context of that objective that the question as to whether serious damage also encompasses future damage, which cannot be attributed to a particular specimen, should be answered.

92. The case-law already explained that the damage in the sense of the letter (b) could be future damage, as that provision aims at preventing damage.⁽⁴²⁾ That future damage cannot, however, be purely hypothetical. I thus agree with the Commission that the mere possibility that damage may occur does not suffice. Rather, the likelihood that damage may occur must be high.⁽⁴³⁾ Therefore, ‘serious damage’ under Article 16(1)(b) of the Habitats Directive includes future damage, the occurrence of which is highly likely.

93. In the present case, in which it was established that wolf 158MATK has already attacked and killed or harmed sheep on the Alpine pastures on two separate occasions, one may accept that it is highly likely that this would happen again.⁽⁴⁴⁾ The 158MATK ordinance, which provides that that specimen constitutes an immediate and significant threat to grazing animals, seems to take such a position.

94. Only highly likely future damage can be taken into consideration to assess whether the damage at issue is serious. The referring court wonders what type of future damage can be taken into account in order to conclude whether damage is serious. That court mentioned in the order for reference three separate types of damage, the first being that the direct or indirect material damage caused by the depredation of a particular wolf (lost sheep, cost of organising premature descent from mountain pastures, or increase in the cost of feeding animals after descent). There is no doubt that such damage is to be taken into consideration.

95. The second type of damage mentioned is the non-material damage attributable to the attacks of a particular wolf, suffered by the farmers who no longer enjoy raising sheep or experience psychological stress. As pointed out by the Commission, the wording of the provision under (b) allows for the inclusion of such damage. The main purpose of that provision is to prevent serious damage. Damage to livestock or property mentioned in the remainder of that sentence is only illustrative. Prevention of other types of damage, such as non-material damage is, thus, not excluded. However, that damage has to be a consequence of the attacks by a particular wolf that is subject to the derogation measures at issue.

96. The referring court seems to be mostly concerned with the third type of damage, that is, future indirect damage to the economy. It mentions long-term macroeconomic developments resulting from possible disappearance of Alpine pasturing, which can have consequences for leisure activities or tourism.

97. As pointed out by the Commission, such consequences cannot be deemed highly likely (it is far from certain that Alpine pasturing will be abandoned if wolves are present and occasionally attack sheep,⁽⁴⁵⁾ or that tourism would decrease rather than increase if there are wolves in the mountains⁽⁴⁶⁾).

98. If those consequences occur, they will most likely be the result of multiple causes and various factors. I find it difficult to imagine that the destiny of Austrian Alpine pasturing lies in the paws of wolf 158MATK.

99. Such indirect long-term macroeconomic developments, not imputable to a particular wolf, cannot, therefore, be taken into consideration within the notion of ‘serious damage’ as provided for under Article 16(1)(b) of the Habitats Directive to justify the decision to cull one wolf specimen.

100. Such concerns should be addressed in the systemic measures and plans which Member States must adopt in order to comply with Article 12 of the Habitats Directive.⁽⁴⁷⁾

101. In answer to the third question, I propose that the Court interprets the concept of ‘serious damage’ within the meaning of Article 16(1)(b) of the Habitats Directive, as not covering indirect (future) economic damage which is impossible to attribute to a single wolf.

3. Economic considerations in deciding on the availability of a satisfactory alternative (the fourth question)

102. By its fourth question, the referring court asks whether the existence of ‘satisfactory alternatives’ within the meaning of Article 16(1) of the Habitats Directive is to be examined solely on the basis of actual feasibility of a measure or whether economic criteria are also relevant.

103. Any assessment of the existence of a satisfactory alternative needs to start by determining the available possibilities for achieving the objective of the derogation. When the deciding authority chooses one of those possibilities, it needs to explain that choice, including why other options were discarded.

104. In the present case, the objective of a derogation is to prevent serious damage which is highly likely to occur from repeated depredations of wolf 158MATK. The Provincial Government of Tyrol decided that the appropriate measure is to allow for the culling of that specimen, whereas other available measures are unsatisfactory. By its fourth question, the referring court in essence wishes to know whether economic costs can be a reason for discarding other technically possible options.

105. In my view, the economic costs of the technically available measure can be taken into account as one of the elements in assessing whether such a measure is a satisfactory alternative. One may reach that conclusion from the text and the system of the Habitats Directive. For example, Article 16(1)(b) thereof, at issue in this case, allows for economic concerns to be taken into consideration, as it allows for derogations in order to prevent serious damage. Article 2(3) of the Habitats Directive also provides that ‘measures taken pursuant to this Directive shall take account of economic, social and cultural requirements and regional and local characteristics’.⁽⁴⁸⁾

106. Nevertheless, even if economic concerns can be taken into consideration, alternative measures cannot be rejected from the outset on the grounds that they would cost too much.⁽⁴⁹⁾

107. The proportionality review undertaken to justify chosen solution must be a balancing stricto sensu,⁽⁵⁰⁾ which requires a weighing of all relevant interests at issue: those of livestock breeders and those expressed in the Habitats Directive to preserve diversity through, among others, the strict protection of certain species.

108. In that sense, it is necessary to recall that under the Habitats Directive, and more specifically under Article 12, Member States have an obligation to develop preventive programmes that will enable protected species to achieve a favourable conservation status (see point 100 of this Opinion). If economic costs of breeding livestock guarding dogs (‘LGDs’), or educating shepherds are assessed in the context of each individual decision relating to a danger posed by a single specimen, they will always be estimated as too costly.⁽⁵¹⁾ To the contrary, if they are part of a preventive national plan, the conclusion might be different. Therefore, the economic costs as part of the assessment of the availability of satisfactory alternative must be placed in the context of Member States’ obligations to put in place measures and plans necessary for the strict protection of wolves.

109. The Expert Report on which the contested decision is based concluded that three alternatives that were taken into consideration – raising fences, using LGDs, or having shepherds accompanying the herds are not reasonably and proportionally available.⁽⁵²⁾ That conclusion was reached on the basis of the general rules⁽⁵³⁾ which had determined in advance which types of pastures could not reasonably be protected, not only because it was technically impossible, but also because it was assessed as too costly.⁽⁵⁴⁾ The Expert Report examined 61 pastures at which wolf 158MATK was considered to present a danger to livestock, and found that all of them display at least one criterion as to why it was not reasonable to use those measures of protection of herds. At the same time, the contested decision did not place such a conclusion in the context of any plans of either the Provincial Government of Tyrol or the Austrian Government, which were adopted to address the problem of protecting livestock in Alpine pastures from wolf attacks.

110. Lack of any plans for the management of the new situation resulting from the return of the wolves, together with the general criteria established in advance concerning pastures that cannot benefit from the measures for the protection of livestock, result in the possibility to defend every decision allowing for the culling of a lone wolf as a result of no availability of an economically reasonable alternative. It is a blanket licence to kill any wolf appearing in the area before them having been formally declared as an exception to the regime of strict protection applicable to wolves in general.

111. That was not the intention of Article 16(1) of the Habitats Directive. The derogations provided for are exceptional measures, and should not become an instrument for preventing the presence of wolves in certain areas. Cohabitating with wolves demands some adjustments and related costs must also be borne on the part of the Alpine breeders.⁽⁵⁵⁾ Such inevitable costs cannot be ignored in the assessment of proportionality of alternative measures.

112. The Court has already held that Article 16(1)(b) of the Habitats Directive does not permit the authorities to derogate from the prohibitions laid down in Article 12 of that directive on the sole ground that compliance with those prohibitions entails a change in agricultural, forestry or fish farming activities.⁽⁵⁶⁾ Those changes are not cost-free. Therefore, some costs of enabling the return of wolves have to be accepted as intrinsic to the goals of the Habitats Directive. They are part of, what the Austrian Government called at the hearing, a process of relearning how to live with wolves.

113. In the present case, for example, costs of descending herds earlier in a single year might not be sufficient to conclude that that is not a satisfactory alternative measure. Organising protection, by erecting fences where possible or training LGDs and possibly pooling them for more herds⁽⁵⁷⁾ takes time and might not be available in the year when a lone wolf passes through certain Alpine pastures. However, such measures might be in place for the following Alpine pasture year, if the plans existed for the introduction of such measures. The costs of such measures might even be mitigated through different public sources of financing, including at the EU level.⁽⁵⁸⁾

114. Thus, the economic costs of available measures cannot be assessed in isolation of preventive plans necessary for enabling strict protection under Article 12 of the Habitats Directive. The authority allowing for a derogation must clearly explain in which way the economic factors influenced the decision that other measures are not a satisfactory alternative, placing its decision in the wider context of the obligations which Member States have under the Habitats Directive.

115. In Commission v Finland, the Court considered that ‘such decisions … which do not contain a clear and sufficient statement of reasons as to the absence of a satisfactory alternative, are contrary to Article 16(1) of the Habitats Directive’.⁽⁵⁹⁾ It is for the referring court to establish whether the contested decision clearly explained in which way the economic factors influenced its finding concerning the lack of a satisfactory alternative to culling a wolf.

116. I, therefore, propose that the Court answers the fourth question in the following way: the assessment of the availability of a satisfactory alternative can take into consideration economic costs of alternative measures. In assessing the impact of economic costs of available measures, all participating interests must be balanced. Appreciation of the influence of economic factors on the conclusion that a satisfactory alternative does not exist must take into consideration that some costs and adjustments are inevitable if the goals of that directive are to be achieved. The assessment must be conducted on a case-by-case basis and cannot be based on criteria set generally and in advance and it must be placed in the wider context of a Member State’s measures and plans for enabling the strict protection of wolves.