In decision C-601/22 published on 11 July 2024, the European Court of Justice ("ECJ") ruled that wolf hunting remains prohibited in Austria. According to the court, an exception to this ban can only be granted if the wolf population is in a favourable conservation status, which is currently not the case in Austria. According to initial reports from the federal states, these continue to signal the intention to remove "harmful wolves". In this context, the question arises as to whether the current approach is still permissible in light of the ECJ judgement.

Background and initial proceedings 

The shooting of wolves has been considered a "legal borderline" not only since the initial case on which this judgement is based. The return of the wolf to its original habitat is (increasingly) presenting us with new challenges. As the wolf's favoured habitat extends across our entire cultural landscape and Austria therefore offers ideal living conditions for the wolf in many respects, it is not surprising that reports of wolf sightings are increasing.  

Case C-601/22 is based on a Tyrolean case in which a wolf killed around 20 sheep on unprotected Tyrolean pastureland in the summer of 2022. The Tyrolean state government then issued a decision that provided for the regulated removal of the wolf - in other words, the shooting of a specific wolf. Several animal welfare organisations lodged an appeal against this decision with the Tyrolean Provincial Administrative Court ("LVwG"). 

The LVwG then asked the ECJ for an interpretation of EU law. Essentially, the question was (in simple terms) whether national measures to regulate wolf populations are compatible with the Habitats Directive. 

Current legal situation 

The objective of the Habitats Directive is, in particular, the conservation or restoration of certain wild animal and plant species. One of the animal species classified as a "species of Community interest requiring strict protection" in accordance with Annex IV of the Habitats Directive is the wolf. It follows that, in addition to deliberate capture or disturbance, the taking of a wolf - as in this case by shooting it - also constitutes a derogation from Art. 12 of the Habitats Directive. However, the protection guaranteed by this provision is not absolute, as the Habitats Directive provides for an exception in Art 16, which allows hunting under certain (quite restrictive) conditions. These conditions include, for example, the prevention of damage that is of economic or social relevance to animal husbandry, as well as damage resulting from overriding public interest. It must be taken into account that no milder means must be available and the favourable conservation status of the population must be guaranteed.

The greatest challenge arising from the consideration of the requirements of Art. 16 of the Habitats Directive is to ensure the favourable conservation status of the affected species listed in Annex IV of the Habitats Directive if the derogations are applied. This regulation is challenging insofar as numerous species are only listed in the Annexes due to their rarity and endangerment and therefore do not remain in a favourable conservation status.

Key statements of the judgement

On the one hand, the ECJ dealt with the question of whether it is contrary to the principle of equality that wolves are exempt from the strict protection regime of the Habitats Directive in some European countries, but not in Austria. The answer is no. This is due to the fact that Austria - in contrast to other countries - did not express any reservations about the high protection status of the wolf when it joined the European Union.

A further question that the ECJ had to decide was whether Article 16(1) of the Habitats Directive should be interpreted as meaning that the maintenance of a favourable conservation status is to be assessed only with regard to the local and national territory of the Member State concerned or to the entire biogeographical region that extends beyond national borders. In this regard, the ECJ has stated that the level of the biogeographical region is only to be taken into account if it has been established in advance that a population already remains in a favourable conservation status at the level of the local area and the national territory of the Member State concerned. In other words: If, under this consideration, the national conservation status is poor, only the national conservation status may be assessed. Only if this national conservation status is good should the supra-regional conservation status be assessed with regard to other Member States. 

With regard to the exception of "prevention of significant damage" laid down in Art. 16 para. 1 lit c of the Habitats Directive, the ECJ has stated that only direct damage may be assessed. Consequently, indirect damage, such as farm closures and the resulting reduction in the overall livestock population, which are particularly relevant for mountain pasture farming, are not subject to assessment.

According to the ECJ judgement, in order to achieve the objectives of the Habitats Directive, the economic costs of a measure other than the removal of a specimen of a strictly protected species must be weighed against the ecological costs of this removal. The competent authorities are therefore obliged to use the best possible scientific and technical knowledge to make the decision to remove the wolf. Other satisfactory solutions, such as alpine pasture protection measures, must be evaluated and weighed up. 

In simple terms, this means that the respective federal state may take into account the costs of alpine pasture protection measures (such as fences or shepherd dogs); however, the removal of the wolf can only be considered if the costs of the alpine pasture protection measures are significantly higher than the disadvantage associated with the removal of a wolf. 

Conclusion and outlook

The circumstances described allow the conclusion to be drawn that in future the removal of "harmful wolves" will be associated with greater difficulties than in the past.

The fact that the ruling can be seen as a tightening of the existing case law results in particular from the fact that the ECJ has stated that a supra-regional assessment of the conservation status is only permissible if the national conservation status is classified as favourable. As many species already remain in an unfavourable conservation status, this case law leads to a complication of the exceptions to the species protection provisions. If the conservation status of a population in a certain region is assessed as unfavourable, while it is classified as favourable in another biogeographical region, even supposedly "neutral interventions" can be detrimental to the local population and therefore inadmissible. Vice versa, it must also be examined whether, in the case of a favourable conservation status of the wolf population at local level, this status is also given at transboundary level. 

In other words, shooting in a Member State in which a favourable conservation status has been established for a species may not be permitted if it is likely to have a negative impact on the population in the neighbouring state. Consequently, the derogation must in no case compromise the maintenance of the favourable conservation status.

As a result, the ECJ judgement has significantly restricted the possibility of active population management, including the selective removal of individual wolves, as the existing restrictive requirements have been tightened. As a consequence, it is to be expected that the requirements set out in the judgement will (have to) be taken into account by the respective federal states. It is questionable whether the shooting authorisations currently in force in the federal states comply with the "de facto shooting ban" of the ECJ and are therefore in line with EU law. Although the new requirements from the judgement and their compatibility with the Austrian legal situation will only become apparent over time, it can already be predicted that this case will not be the last to be dealt with by an Austrian administrative court, the European Commission in the course of possible infringement proceedings and, subsequently, the ECJ.