Dear Jessika Roswall

The Danish association Ulvetid hereby send you our comments on the below document.

We are fully aware that the document has been authored by NINA and not the EU- commission. However, we will like to point out some important issues as it must be expected that the document will be used as a reference by the member states.

 

Comments on “DRAFT3: Developing methodology for setting Favourable Reference Values for large carnivores in Europe”: of November 2024

Although the above document was written by European researchers who deserve a certain respect, there are passages in the text that seem problematic in relation to judgments from the CJEU.

It appears from the second chapter of “Methodology” that” This document is intended to be a presentation of the best available, policy-relevant, interdisciplinary science. It is written with the intention of being applied within the existing legal framework of the Habitats Directive. We have endeavoured to develop interpretations of key concepts that are feasible. As such, we have endeavoured to navigate the legal space defined by our reading of the Directive and the accumulating body of case law from the CJEU”

Two times, the authors of the document use the word “Endeavoured”. It is understandable that the researchers thus “take reservations” as to whether the text complies with the legal aspects of the relevant judgments from the CJEU and the Habitats Directive.

The authors of the document are researchers who specialize in the biological aspects concerning predators. They are not lawyers. Therefore, the EU Commission should ensure that all legal aspects in the final document are in accordance with the law in the Habitats Directive, and the judgments handed down by the CJEU.

The researchers write in the same section “It is important to point out that only the CJEU can decide whether specific policies fall inside, or outside the law.” This is of course correct, which underlines the need for the EU-Commission to ensure that the text in the document fall inside the law.

Several of the suggestions and recommendations in the document are actually incompatible with the judgments C-674/17 – Tapiola and C-601/22 – WWF Österreich and Others. The following recommendation can be seen on page 35: “Because of the importance of non-EU countries to many of the populations (especially in the Alps, Scandinavia, Dinaric-Balkans and Carpathians) we recommend that population level assessments should be able to include the individuals in these non-EU countries because they are bound by the Bern Convention “

This text is in direct conflict with judgment C-674/17 paragraph 60, which clearly and unequivocally states that populations belonging to a third country which are not bound by the rules of the Habitats Directive cannot be included in the population assessment to obtain FCS. The Scandinavian population is specifically mentioned. The only third country that borders Scandinavia is Russia. The wolf is heavily hunted in Russia, which along with the Finish border fens, might jeopardize a long-term stable exchange of genes between the Russian-Karelian population and the Finnish-Karelian population.

The following recommendation can be seen on page 36 “The CJEU has clearly stated that the Fennoscandian countries (and presumably the Baltic countries by extension) cannot count on their connectivity with Russian populations in an a priori manner, because Russia is not bound by the same legislation. However, if research and monitoring can document that there is an actual and ongoing geneflow across the border it would seem disingenuous to deny the reality of the situation (i.e. if the parts of the population that extend into Finland, Sweden and Norway or the Baltic States are really extensions of a continuous population with large effective population size). We would therefore suggest that this connectivity be counted as long as it can be continuously documented.”

As said “The CJEU has clearly stated that the Fennoscandian countries (and presumably the Baltic countries by extension) cannot count on their connectivity with Russian populations in an a priori manner, because Russia is not bound by the same legislation.

Despite this correct rendering of paragraph 60 of CJEU judgment C-674/17, the researchers suggest that, under certain conditions, a unambiguous EU judgment can be disregarded by including individuals from a third country in the assessment of the Scandinavian population. This is absolutely unacceptable.

On page 43, the question is raised as to when a Member State can declare to have achieved FCS. “The question arises if a member state can reach FCS even if the overall population has not, and vice versa, can a population be viewed as being at FCS even if all contributing member states have not yet reached their objectives? In other words there is a question about the relationships between FCSMS and FCSPOP.”

It appears from point 2. in the judgment in the case C601/22 That ” Article 16(1) of Directive 92/43, as amended by Directive 2013/17, must be interpreted as meaning that the condition laid down therein, according to which the derogation granted under that provision must not be detrimental to the maintenance of the populations of the species concerned with a favourable conservation status in their natural range, may be assessed by taking account, in the light of the available data, of the level of the biogeographical region, which extends beyond national borders, only where it has been established in advance that that derogation does not adversely affect the maintenance of such a favourable conservation status at the level of the local and national territory of the Member State concerned.”

Consequently, the answer to the question raised in that chapter is clearly stated in the ruling from the CJEU-case C-602/22 (paragraph 87)

.

On page 44 it is written that “Where there is a connection to a population in a country that is not bound by the Habitats Directive or Bern Convention there is a higher threshold to demonstrate the absence of barriers (border fences) and documentation of effective geneflow.”

Another example of CJEU judgment C-674/17 being violated.

On page 56 the following text one can read “Example 2. This illustrates 3 large countries (A-C) that are all signatories of a binding treaty, bordering onto a fourth large country (D) which is a signatory – but where there is a real connection”

This is another example of CJEU judgment C-674/17 being violated  Again, third countries that are not bound by the Habitats Directive are to be disregarded. The Country (D), which might very well be Russia, can therefore not be considered).

On page 60 the following text appears: “Finland needs to opt for short-term or long-term genetic viability depends on the extent to which it can consider the connectivity with the larger Russian populations or not”.

In a biological view that is correct. However, once again Russian population cannot legally be taken into account.

As this document in its final form will be a very important document for many years to come and will be used by authorities and governments in all EU member states, it is of the utmost importance that the commission takes care that these recommendations and proposals are brought into line with the judgments with the CJEU’s judgments. Anything else is unacceptable. The European Commission cannot publish a document that does not comply with the judgments of the European Court of Justice.

Best regards

Ole Pedersen

Chairman

The association Ulvetid

Maglemosen 1 – 4070 Kr. Hyllinge – Denmark

Phone.: + 45 60613739

Mail: formand@ulvetid.dk

Homepage: www.ulvetid.dk