SNH Commissioned Report 524: Derogations for protected species in ...

2 downloads 110 Views 2MB Size Report
Apr 6, 2005 - 3.1 Review of EU legal framework for species reintroduction, protection ...... http://www.umwelt.niedersac
Scottish Natural Heritage Commissioned Report No. 524

Derogations for protected species in European reintroductions

COMMISSIONED REPORT

Commissioned Report No. 524

Derogations for protected species in European reintroductions

For further information on this report please contact: Sally Blyth Scottish Natural Heritage Great Glen House INVERNESS IV3 8NW Telephone: 01463 725 231 E-mail: [email protected] This report should be quoted as: Pillai, A., Heptinstall, D., Hammond, M., Redpath, S. & Saluja, P.G. (2012). Derogations for protected species in European reintroductions. Scottish Natural Heritage Commissioned Report No.524. This report, or any part of it, should not be reproduced without the permission of Scottish Natural Heritage. This permission will not be withheld unreasonably. The views expressed by the authors of this report should not be taken as the views and policies of Scottish Natural Heritage. © Scottish Natural Heritage 2012.

COMMISSIONED REPORT

Summary Derogations for protected species in European reintroductions Commissioned Report No. 524 (Project no 13388). Contractor: Pillai, A., Heptinstall, D., Hammond, M., Redpath, S. & Saluja, P.G. Year of publication: 2012 Background The purpose of this research is to provide recommendations on the legal opportunities to resolve conflicts and secure benefits in the relationships between land managers and reintroduced species protected under Annex IV(a) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (the Habitats Directive) and Annex I of Directive 2009/147/EC of 30 November 2009 on the conservation of wild birds (codified version) (the Birds Directive). The management of Habitats Directive Annex IV(a) and Birds Directive Annex I species, both meriting special protection under European law, is a matter of current interest in Scotland in relation to the reintroduction of protected species. The Habitats Directive Annex IV(a) listed Eurasian Beaver is presently the subject of a trial reintroduction scheme in Scotland. The Birds Directive Annex I Whitetailed Eagle has recently been reintroduced and the Red Kite has already been reintroduced into four locations within Scotland. The first part of the research involved a review of the legal frameworks established by the Habitats and Birds Directives for the reintroduction of species, the special protection of species and derogations from that protection (section 3.1 of this report). Given that there are 499 species and groups of species listed under the Habitats Directive and Birds Directive alone, the first part of this research focuses on the examination of six species, all of which are, or were, native to Scotland. The following species are of interest because they are protected under Annex IV(a) of the Habitats Directive and they have presented particularly complex management challenges: Lynx lynx (Eurasian Lynx); Canis lupus (Grey Wolf); and Ursos arctos (Brown Bear). The following species are of particular interest because they have been reintroduced or are in the process of a formal or trial reintroduction in Scotland: Milvus milvus (Red Kite) (reintroduced); Haliaeetus albicilla (White-tailed Eagle) (reintroduced); Castor fiber (the Eurasian Beaver) (trial reintroduction).1 Each of these species is in receipt of special protection under the Directives and any deviation from that special protection requires a formal derogation in compliance with Article 9 of the Birds Directive and Article 16 of the Habitats Directive. One of the main objectives of this research was to determine to what extent European countries have had to resort to the formal derogations procedures for these protected species and the results of that research are set out in section 3.1.4 and Appendix 3 to this report.

1

Scottish Beaver Trial. Official home of the Scottish Beaver Trial, (The Royal Zoological Society of Scotland / Scottish Wildlife Trust), available at http://www.scottishbeavers.org.uk/. Last visited on 23 March 2012. Details of the independent monitoring programme coordinated by Scottish Natural Heritage can be found at www.snh.gov.uk/scottishbeavertrial.

i

Concurrently a survey was conducted of all reintroductions of species listed under Habitats Directive Annex IV(a) and Birds Directive Annex I across all the EU Member States (see section 3.2). This survey formed the basis of the selection of case studies for further detailed consideration. In addition, a survey was conducted of non-EU European countries examining the reintroduction or presence of the six species of particular interest to this research (see section 3.2 and Appendix 2 to this report). The final part of the research involved six case studies examining the experience of managing key species of Scottish interest in five EU Member States (Ireland, Sweden, Latvia, Netherlands and Germany) and one non-EU country (Norway) (see section 3.3). The case studies focused on the human-species conflicts and management strategies for the Eurasian Beaver, the White-tailed Eagle, the Grey Wolf and the Eurasian Lynx. The research concludes with a set of recommendations for Scotland to ensure the protection of reintroduced species under the Habitats and Birds Directives, whilst resolving conflicts with land management activities and allowing economic development to flourish (section 4). Main findings European legal review and derogations for protected species  









The system of legal protection for animal species protected under Annex IV(a) of the Habitats Directive and Annex I of the Birds Directive is strict. The only circumstances in which the deliberate taking or killing of species protected under Annex IV(a) of the Habitats Directive or Annex I of the Birds Directive are permitted are: where the country is excluded from delivering protection to that species under an express exclusion in the annexes to the Directives; or with a derogation under Article 16 of the Habitats Directive or Article 9 of the Birds Directive. The European policy guidance on the implementation of the strict protection of species suggests that Member States can take a flexible and pragmatic approach to the protection of these species. Nonetheless, there are difficult, grey areas surrounding the interpretation of both the Birds and Habitats Directives, including the circumstances where derogations from the special protection of species are permissible, as illustrated by the discussion in section 3.1.3 and 3.1.4 and the case law review (Appendix 5 to this report). EU policy guidance in relation to species protection and interpretation, particularly in relation to ‘disturbance’ and ‘deterioration’ of breeding and resting sites is instructive and there is a developing body of jurisprudence from the European Court of Justice. However, there remain uncertainties in the interpretation of the provisions and in the flexibility for national implementation. This research reveals that in practice derogations have been used to manage all the Habitats Directive Annex IV(a) species examined here: the Eurasian Beaver, Brown Bear, Eurasian Lynx and Grey Wolf. Moreover, derogations have been used to manage these species in countries where they have been reintroduced, although there has been no resort to derogations under the Birds Directive for either the Red Kite or the White-tailed Eagle in Ireland, which is the only country outside the UK to have reintroduced these species. Recent case law relating to hunting of the Annex IV(a) Grey Wolf in Finland and the initiation of enforcement proceedings against Sweden over the same issue suggests that Member States must act carefully in devising management strategies for protected species which require derogation from the strict, special protection set out in the Directives.

ii

Survey of animal species reintroductions    

 

There are 499 separate listings of species, or groups of species, on Annex IV(a) of the Habitats Directive and Annex I of the Birds Directive.2 Of the 499 species and groups listed, 65 individual species have been identified as having been reintroduced within the EU in a total of 129 individual reintroduction projects. Of the 65 species reintroduced, 62 are known to have been reintroduced since the relevant Directives were implemented as part of 111 separate reintroduction projects. 23 EU Member States have been involved in the reintroduction of a species from either Annex and, of those 23 countries; all have reintroduced a species listed on either Annex I of the Birds Directive or Annex IV(a) of the Habitats Directive since implementation. The results of the EU-wide survey of reintroductions are set out in Appendix 1 to this report. A survey of non-EU European countries examined the reintroduction or presence of six species: the Eurasian Beaver; Eurasian Lynx; Grey Wolf; Brown Bear; Red Kite; and White-tailed Eagle. The survey identified the presence of one or more of the six species in 13 non-EU European countries. Only one case of reintroduction was identified for the six species within non-EU European countries; the Eurasian Lynx in Switzerland (see Appendix 2).

Case studies  







2 3

The focus of the six case studies (Ireland, Sweden, Latvia, Netherlands, Germany and Norway) was on the management options available to deal with conflicts between reintroduced species and land managers. The case studies reveal varying experiences of species reintroduction projects. For example, the long established reintroduction of the Eurasian Beaver in Latvia has given rise to widespread and serious concerns, whilst in the Netherlands, where the species has been reintroduced relatively recently,3 people are generally pleased with the reintroduction of the species. Conflicts arise over the real or perceived impact of reintroduced species on other species, habitats or forestry, hunting and agricultural practices. Conflicts may also arise between land users and conservation organisations or agencies because of the sense of the reintroduced species being imposed on them against their will. However this research does not attempt to address the latter issue here. Notwithstanding the wide variation between perceptions of impact by species in the case study countries, similar concerns do arise in relation to particular species. For example White tailed-Eagle predation on lambs in Ireland and lambs and reindeer calves in Norway; damage to forestry, agricultural crops and waterways in relation to the Eurasian Beaver in Germany, the Netherlands, Latvia and Norway; damage to livestock as a result of predation by the Grey Wolf in Sweden and Norway and as a result of predation by the Eurasian Lynx in Norway. A range of, predominantly non-legal strategies (or strategies that do not require a legal basis), are used for managing the impacts in the case study countries, e.g: compensation for loss or damage to property or livestock; financial support for livestock management strategies such as indoor lambing; support for strategies to exclude or discourage species such as electrified fencing. Four of this study’s five EU case studies demonstrate resort to derogations under Article 16(1) of the Habitats Directive to manage the species relevant to this study. A This number excludes species still listed on the annexes but now known to be extinct. The beaver was reintroduced to Latvia in the 1930’s and to the Netherlands in 1988.

iii









striking example is the use of 623 derogations in relation to the management of the Eurasian Beaver in Bavaria, Germany, where pragmatic approaches are adopted to the destruction of breeding and resting sites where there is a threat of serious damage to property or risk of flooding (e.g. in the distinction drawn between natal dams and lodges). The case studies also highlight the fine balance to be achieved between the protection of species and the protection of human interests. Sweden’s wolf hunting policy illustrates that the criteria for derogation must be strictly adhered to in order to avoid the risk of infringing European law. Germany’s management of the Eurasian Beaver appears to be in line with the law and has not, as yet, been challenged despite the routine killing of beavers under derogation and the issuing of permanent derogations for the ‘scaring away’ of beavers. Germany has a healthy and growing population of beavers and the killing of beavers under strictly controlled conditions is recognised by the national authorities as the only satisfactory alternative to manage the species where problems arise. Sweden’s strategy for licensed hunting of Grey Wolves by contrast has been questioned by the European Commission as the species is not at favourable conservation status and quotas for hunting have not been based on an assessment of the impact of the derogation on the species or on a species management plan. As a result Sweden has ceased the licensed hunting of Grey Wolves and is in the process of rethinking its approach to the management of this species. This may lead to an increase in illegal killing of Grey Wolves and to greater conflict. These cases illustrate that the special protection measures set out in the Habitats Directive are strict and that the derogations procedure is only intended to be used in exceptional circumstances. Yet, resort to derogations can be a necessary and pragmatic solution where species are at favourable conservation status and a clear species action plan is in place to enable species protection to continue alongside human economic activities.

Recommendations for Scotland 



 

Although the strict legal protection afforded to species under Annex IV(a) of the Habitats Directive (and correspondingly Annex I of the Birds Directive) on the face of it offers all species listed there the same level of protection under the law, EU policy and jurisprudence confirms a species by species approach is required. The key to addressing the legal requirements under EU law is to have a national species management strategy in place which addresses the needs of the species, the threats faced by the species as well as the problems it poses for human activities, as well as management strategies which are in line with the law. The extensive use of derogations in practice suggests that SNH can and should plan to put strategies in place, including resort to derogations under specified circumstances. Section 4 of this report makes a number of general and specific recommendations for the management of reintroduced species in Scotland.

iv

Acknowledgements The researchers are grateful to the anonymous interviewees in the case study countries for their participation and assistance. We are also grateful to Sally Blyth and Martin Gaywood at SNH for coordinating this research project and for providing information and guidance, inter alia, on SNH policies and procedures. Useful feedback on the draft report was provided by a number of individuals at SNH and the subsequent amended draft report was presented and discussed at the National Species Reintroduction Forum in February 2012. The authors are grateful to the forum members for written and verbal feedback. The authors have sought to take all feedback into account in this final report, although it is inevitable given the short timescale for this research that it has not been possible to cover all issues of interest. Thanks are also due to Professor Colin Reid at the University of Dundee School of Law for useful discussions in relation to the early stages of this research and for insightful comments on the final draft. The authors are grateful to the University of Aberdeen School of Law for facilitating this research and to the Rural Law Research Group members for their support. Finally, two German University of Aberdeen LLM students, Katharina Merkel and Christine Zuleger, deserve special mention for checking research and providing translation of German Federal and Bavarian State nature conservation law.

v

Table of Contents

Page

1

INTRODUCTION

1

Background Objectives Scope

1 2 3

1.1 1.2 1.3 2

METHODS

2.1 2.2 2.3 3

Review of EU legal framework for species protection and derogations Survey of animal species reintroduction projects Case studies RESULTS

3.1 3.2 3.3 3.3.1 3.3.2 3.3.3 3.3.4 3.3.5 3.3.6 3.3.7 3.3.8 4 4.1 4.2

5 5 7 7 10

Review of EU legal framework for species reintroduction, protection and derogations Survey of European reintroductions of specially protected species Case studies Background to the case studies Ireland Sweden Latvia Netherlands Germany Norway Case study discussion

DISCUSSION AND RECOMMENDATIONS Discussion Points Recommendations

10 27 30 30 32 35 38 42 44 53 62 67 67 68

5

CONCLUSION

76

6

REFERENCES

77

APPENDICES

83

1. EU reintroductions of species listed in Annex I of the Birds Directive and Annex IV(a) of the Habitats Directive

83

2. Results of the investigation of the reintroduction of selected species in non-EU European countries

88

3. Derogations for selected species

90

4. List of case study interviews

96

5. European Union case law review

97

6. References for survey of EU and non-EU European reintroductions

109

vi

1

INTRODUCTION

The primary concern of this research is to contribute to the understanding of how species reintroductions can be facilitated whilst providing mechanisms for dealing with conflicts between the reintroduced species and landowners and managers. A need for this research arose from discussions at the Scottish National Species Reintroduction Forum which highlighted the need to provide more clarity on the issue, based on the European experience. ‘Reintroduction’ has been defined by the International Union for Conservation of Nature (IUCN) as an attempt to establish a species in an area which was once part of its historical range, but from which it has become extirpated or become extinct.4 Multiple scales of reintroduction exist ranging from local level reintroduction; where a species is moved a few kilometres into an area in which it was previously present but is now absent, to the regional and the national level reintroductions; where species are reintroduced to a region or country where they have been extirpated. This research investigates national and regional reintroductions of species.5 This research is primarily concerned with certain species protected under Annex IV(a) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (the Habitats Directive) and Annex I of Directive 2009/147/EC of 30 November 2009 on the conservation of wild birds (codified version) (the Birds Directive). The research involved: 1. a review of the EU legal framework for reintroduction, special protection and derogation from that special protection; 2. a survey of animal and bird species reintroductions across EU Member States and in non-EU countries; 3. six case studies addressing the experience of managing key species in five EU Member States (Ireland, Germany, Netherlands, Sweden and Latvia) and one non-EU European country (Norway). The final part of this report considers the implications for Scotland in relation to how reintroduced species can be actively managed after reintroduction, in accordance with EU, UK and Scottish law, in order to avoid conflicts with land managers and owners and to allow economic development to flourish, as well as to maximise the positive benefits, such as tourism and recreational enjoyment that these species can bring. 1.1

Background

The management of Habitats Directive Annex IV(a) and Birds Directive Annex I species, both meriting special protection under EU law, is a matter of current interest in Scotland in relation to the reintroduction of protected species. The Habitats Directive Annex IV(a) listed Eurasian Beaver is currently the subject of a trial reintroduction scheme in Scotland.6 The Birds Directive Annex I White-tailed Eagle has recently been reintroduced in Scotland7 and the Red Kite has already been reintroduced into four locations within Scotland.

4

IUCN. 1998. Guidelines for Reintroductions. Prepared by the IUCN/SSC Reintroduction Specialist Group, IUCN, Gland, Switzerland and Cambridge, UK (henceforth, IUCN Guidelines, 1998) 5 Appendices 1 and 2 deal with national and regional reintroductions of species in areas where the species have been extirpated. 6 Scottish Beaver Trial. Official home of the Scottish Beaver Trial, (The Royal Zoological Society of Scotland / Scottish Wildlife Trust), available at http://www.scottishbeavers.org.uk/. Last visited on 23 March 2012. Details of the independent monitoring programme coordinated by Scottish Natural Heritage can be found at www.snh.gov.uk/scottishbeavertrial. 7 The White-tailed Eagle was reintroduced to the West coast of Scotland in 1975 and, recently, to the East coast in 2007.

1

This research aims to consider the legal implications of the reintroduction and special protection of species under the Habitats Directive Annex IV(a) and Birds Directive Annex I and to explore the management strategies (both legal and non-legal) for addressing or preventing conflicts and maximising benefits. On one hand, these reintroduced species merit special protection because they make a valuable contribution to biodiversity by helping to restore ecosystem function, addressing moral arguments about the restoration of lost species and improving human enjoyment of the environment. On the other hand, these species will have, or be perceived to have, some impact on other species or on human economic activities. Reintroductions may also lead to discord between the agencies responsible for reintroduction and other stakeholders where the stakeholder’s property or interest may be put at risk by species perceived as being imposed on the local land against the stakeholder’s will.8 It is necessary to be aware of the legal protection covering these species and of the mechanisms for detecting, reporting and resolving issues where there are competing economic, conservation or other interests. There is some evidence to suggest that people will be more accepting of reintroductions if effort is spent on outreach and information sharing beforehand.9 The relatively recent reintroduction into Scotland of species meriting special protection under Annex IV(a) of the Habitats Directive and Annex I of the Birds Directive is a matter of some concern given that landowners and managers will not yet have strategies in place to deal with these species, nor past experience to rely on. However, other countries across Europe do have experience of the reintroduction and management of these species and part of the purpose of this research is to benefit from that experience. 1.2

Objectives

The objective of this research is to provide guidance for Scottish Natural Heritage and its partners on how reintroduced species can be managed within the constraints of the law. Within that overarching objective, further objectives are: 1. 2. 3.

4.

To identify all national and regional scale reintroductions of species protected under Annex I of the Birds Directive and Annex IV(a) of the Habitats Directive within Europe; To determine the extent of resort to derogations from the special protection measures under those directives for the six species of particular interest to this study; To examine the experience of other European countries in managing particular species using case studies from five countries within the EU and one non-EU European country. The case studies seek to determine what problems or concerns land managers face and which strategic management approaches are in place to address these concerns. To provide recommendations for Scottish Natural Heritage and its partners on how reintroduced species can be actively managed after reintroduction, in accordance with European and Scottish law, in order to avoid conflicts with land managers and owners, as well as to maximise the positive benefits, such as tourism and recreational enjoyment that these species can bring.

8

See, Arts, K., Fischer, A., and Van der Wal, R. 2012. ‘Common stories of reintroduction: A discourse analysis of documents supporting animal reintroductions to Scotland’, LUP, in press. 9 Morzillo A.T., Mertig A.G., Hollister J.W.& Garner, N.J. 2010. Socioeconomic Factors Affecting Local Support for Black Bear Recovery Strategies. Environmental Management,45, (6), 1299; Heydon, M.J., Wilson, C.J. & Tew, T. 2010. Wildlife conflict resolution: a review of problems, solutions and regulation in England. Wildlife Research, 37, 721.

2

1.3

Scope

The research is broad in scope and has been completed within a short time-frame.10 Therefore, it is not the purpose of this research to provide a comprehensive discussion of all of the relevant issues. It is primarily concerned with the use of derogations and other legal and non-legal11 strategies for the management of reintroduced species which are protected under the Habitats Directive Annex IV(a) (animal species meriting special protection) and the Birds Directive Annex I (bird species meriting special protection). Given that there are 499 species listed under the Habitats and Birds Directive alone, and of those 499, 65 individual species have been identified by this research as having been reintroduced within the EU, the first part of this research, the legal review, focuses on the examination of six species, all of which are, or were, native to Scotland: the Eurasian Beaver (Castor fiber); the White-tailed Eagle (Haliaeetus albicilla); Milvus milvus (Red Kite); Ursos arctos (Brown Bear); the Grey Wolf (Canis lupus); and the Eurasian Lynx12 (Lynx lynx).13 The first three species are of particular interest because they have been reintroduced or are in the process of a formal or trial reintroduction in Scotland: Milvus milvus (Red Kite) (reintroduced); Haliaeetus albicilla (White-tailed Eagle) (reintroduced); Castor fiber (the Eurasian Beaver) (trial reintroduction). The last three species are of interest because they are protected under Annex IV(a) of the Habitats Directive and they present particularly complex management challenges.14 Thus the discussion of the legal framework for species protection and, most importantly, the review of derogations from that protection reflect an emphasis on these species. For the purpose of selecting case studies it was decided to concentrate on four species: two of which are the focus of ongoing or trial reintroduction projects in Scotland (White-tailed Eagle and Eurasian Beaver); and two of which reflect particularly challenging management situations in Europe (the Grey Wolf and the Eurasian Lynx). The research is limited to animal and bird species as opposed to plants. There are 644 plant species receiving special protection under Annex IV(b) of the Habitats Directive. Whilst the reintroduction and special protection of plant species is an area of importance, and may be a fruitful area for further research, it is unlikely to present the same types of management challenges as animal species. This research focuses on human-species conflicts surrounding animal and bird species reintroductions. It is not concerned with conflicts between species and between the reintroduced species and protected habitats. While there will invariably be overlap between these two issues, the constraints of this research mean that it is predominantly concerned with the possible approaches to conflicts between the species and land owners and managers relating to activities such as farming, shooting, fishing and forestry. Full 10

The research was conducted between 17 November 2011 and 23 March 2012. ‘Non-legal’ strategies are defined as strategies which do not require legal intervention to secure and may include practical management strategies such as fencing to exclude species. Legal strategies would include for example, the use of legally binding land management agreements between landowners and nature conservation bodies. 12 See, Hetherington D., Miller D., Macleod C. & Gorman M. 2008. A potential habitat network for Eurasian lynx in Scotland. Mammal Review, 38, 285. 13 The research will refer to the English names of the relevant species. The tables of European reintroductions and derogations found in appendices 2 and 3 to this report refer to both English and Latin names to ensure the proper identification of the species. 14 The presence of these large carnivores in areas inhabited by humans can have consequences for farming (livestock as prey), hunting (competition for wild ungulates as prey), human sense of safety, human recreation (predators discouraging or attracting tourism) and on nature management and protection. 11

3

consideration of species-species and species-habitat impacts is recommended as one of a number of key areas for further study. Given that the research examines the use of derogations for managing reintroduced species and other legal and non-legal methods of managing conflicts between the species and land managers, it is necessarily focused on the negative aspects of reintroduction projects. While case study interviewees were asked to comment on the benefits, or positive aspects, of reintroduction projects, by the very nature of this research the emphasis was on the problems resulting from reintroductions and the resulting management strategies, along with the need for resort to derogations. This was unavoidable given that one of the main aims of the research was to explore the circumstances in which derogations are relied upon. It is beyond the scope of the current research to provide a survey of stakeholder views to determine both positive and negative experience of reintroductions but this would be a valuable area for further research. This research has focused on European experience of reintroductions and on the European legal frameworks. A broader review including in particular, USA experiences and legal approaches to reintroduction may be useful in the future.

4

2

METHODS

This report presents the results of a three part research project. It includes: 1.

2.

3.

a review of the legal and policy framework for the special protection of species under EU law in relation to Annex IV(a) of the Habitats Directive and Annex I of the Birds Directive; the implications of that protection for reintroduced species (including a case law review in Appendix 5); and a review of derogations from that protection (Appendix 3). a survey of European species reintroduction projects: a. across the EU Member States (Appendix 1); and b. a survey of species reintroduction in non-EU European countries for the purpose of identifying a non-EU case study for comparison (Appendix 2); an examination of existing experience in six countries as case studies of the management of reintroduced species or, where there have been no reintroductions, of the management strategies for relevant species.

It concludes with a discussion of the management strategies (legal and non-legal) available for reintroduced species or potential candidates for reintroduction in Scotland and recommendations for Scotland (section 4 of this report). 2.1

Review of EU legal framework for species protection and derogations

The first part of the research was a legal review considering the potential legal implications of species reintroductions, the protection afforded to the key species under the Habitats and Birds Directives, and the use of derogations for protected species. 2.1.1 Desk-based literature review of European legal and policy framework The research was conducted by a desk based literature review of EU, European and domestic legislation, policy documentation, case law, and academic literature. The research drew on the resources of the European Documentation Centre in the University of Aberdeen Taylor Library.15 The results are presented in section 3.1 and Appendix 5 of this report. 2.1.2 Review of derogations from the Habitats and Birds Directives A review was undertaken of derogations from the Habitats16 and Birds Directives17 between 2001 and 2008. Information was gathered from composite reports, compiled by the European Commission, of the biennial reviews of derogations under both Directives for all EU nations. The results of that review are discussed in section 3.1 below. Furthermore, Appendix 3 provides an overview of all derogations within all reporting periods18 relating to the six species of particular interest to this study: the Eurasian Beaver; Eurasian Lynx; Grey Wolf; White-tailed Eagle; Red Kite and Brown Bear.19 Appendix 3 reveals how extensively resort is being made to the derogations process in relation to these species, as well as 15

A guide to the European Documentation Centre is available at http://www.abdn.ac.uk/library/about/taylor/edc/. Last visited on 23 March 2012. 16 European Commission Composite Reports on Derogations from the Habitats Directive http://ec.europa.eu/environment/nature/knowledge/rep_habitats/index_en.htm. Last visited on 23 March 2012. 17 European Commission Composite Reports on Derogations from the Birds Directive http://ec.europa.eu/environment/nature/knowledge/rep_birds/index_en.htm. Last visited on 23 March 2012. 18 In so far as that information is available and subject to the methodological constraints outlined below. 19 The review focused on these species for the reasons outlined earlier (see Section above 1.3).

5

showing the types of derogations used20 and the grounds for those derogations. It is important to note that derogations are not issued solely in relation to problems arising from the activities of protected species. Monitoring work that causes disturbance to breeding or resting sites can require derogation as can the translocation of individuals for the purpose of breeding and reintroduction programmes elsewhere. Additionally the research examined whether the derogations related to a reintroduced population of the species and that is reflected in the final column in Appendix 3, which indicates whether the species was reintroduced in the country of interest. In the vast majority of cases, where a reintroduced population is present, the derogation relates to the reintroduced population; however, due to the lack of information contained within the European Commission's composite reports (discussed below), it cannot conclusively be determined that the derogation does not refer to a natural population, if such a population occurs in the country. Although the present research has undertaken a careful review of the derogations, based on the available information, there are significant methodological weaknesses in the European derogation reporting procedure itself and these have been acknowledged by the European Commission.21 These include variability in quality and frequency of reporting by Member States and variability in accuracy and completeness of the information provided by the Member States. For the purposes of this research there are a number of significant difficulties. Firstly, the composite report on derogations for the period 2009-2010 is still not publicly available as not all countries have yet submitted reports for the period. Secondly, even for those periods which are available, the reporting by individual nations to the Commission is poor and, in several cases, non-existent with the result that the subsequent compilation of national reports by the EU is below the standard that would be expected. Individual country reports often lack specific details such as grounds for the derogation and actions taken under the derogation, and sometimes, even lack basic information such as the species involved in the derogation. In addition to these methodological weaknesses in the reporting procedure the Commission’s own composite reports suffer from a lack of structure and often summarise information to such an extent that none of the relevant details remain. In many cases it is not possible to tell how many derogations have been issued in relation to a particular species in a given country, and even if it is possible to identify the number of derogations it is not always possible to identify the number of licences to which these derogations relate or the number of animals impacted. The Commission’s composite reports are also prone to contradictory statements. There seems to be little consistency in the way that the composite reports are compiled and little consistency in the way that Member States reports are summaries and assessed. Given the inadequate reporting process for derogations from the Birds and Habitats Directives; the derogation information provided in Appendix 3 to this report should be seen as providing an indication of the minimum number of derogations which occurred between 2001 and 2008, but it cannot provide a definitive list as inevitably some derogations will have gone unreported.

20

Due to the unsatisfactory nature of the European Commission’s reporting process (discussed below) this information is included in Appendix 3 when it has been available. In many instances the nature of the derogation is not specified in the composite reports and these are highlighted in the appendix as ‘unspecified’. 21 European Commission, Composite European Report on Derogations in 2007-2008 According to Article 16 of Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora (The Habitats Directive) 2011, (henceforth, European Commission, Report on Derogations 2011).

6

2.2

Survey of animal species reintroduction projects

The review of European reintroductions of animal species listed under Annex IV(a) of the Habitats Directive and Annex I of the Birds Directive provides an overview of European species reintroductions to enable case study selection. The research comprised the following steps: 1.

Identification of all EU countries where species listed under the relevant directives occur;

2.

Identification of all EU countries where species listed under the relevant directives have been reintroduced;

3.

Identification of non-EU European countries where the six species of particular interest to this research occur;

4.

Identification of non-EU European countries where the six species of particular interest to this research have been reintroduced.

The results of the above are summarised in section 3.2 of this research and can be found in full in appendices 1 and 2. The above research was undertaken as a desk-based literature review which utilised a variety of academic and “grey” literature sources. Academic literature was searched for using the Scopus, Web of Knowledge, and Conservation Evidence databases. Grey literature was found by a combination of web-based searches using the Google search engine and consultation with databases such as the ICUN Red List Database and the Birdlife International Species Database. A full bibliography for the findings presented in appendices 1 and 2 can be found in Appendix 6 to this report. Further, the sources of the information contained in Appendix 1 are indicated in the final column of that table as a numerical reference which corresponds to the list of references in Appendix 6. 2.3

Case studies

The second part of the research was a detailed examination of a small number of case studies. For the purpose of selecting case studies it was decided to concentrate on four species: two of which are the focus of ongoing or trial reintroduction projects in Scotland (White-tailed Eagle and Eurasian Beaver); and two of which reflect particularly challenging management situations in Europe (the Grey Wolf and the Eurasian Lynx). The case studies build on the information gleaned from the survey of species reintroductions. 2.3.1 Selection of case studies The initial review of species reintroductions highlighted the high number of reintroductions that have occurred across Europe. Investigating every reintroduction project would not have been feasible within the timeframe of this report because there are 129 individual projects, therefore; six countries were selected as case studies for discussion from five EU countries and one non-EU European country for comparison. Case studies examine specific countries, rather than species specific reintroduction projects so that the experience of species reintroduction could be considered alongside the legal, institutional and policy framework for the given country.

7

The criteria for the selection of the EU case studies were: 1. 2. 3.

4. 5. 6.

The country must have reintroduced one or more of the species of interest to the present research. The reintroduction(s) will preferably have occurred since the implementation of the relevant legislation. Where no reintroductions of the relevant species have occurred within Europe, such as for the Grey Wolf, case studies were selected from countries where conflicts have been identified and management strategies are in place to deal with existing populations of those species. Reintroductions should where possible have led to the establishment of a selfsustaining population as such projects are likely to have encountered any potential problems and developed management strategies accordingly. Accessibility of English language information. Accessibility of contact information for potential interviewees.

The criteria for the selection of the non-EU European case study were: 1. 2. 3. 4.

Countries with an established population, either naturally or through reintroduction, of the following species: Eurasian Beaver; White-tailed Eagle; Eurasian Lynx and Grey Wolf. Identification of problems with management of these species and disagreements between different stakeholders. Accessibility of English language information. Accessibility of contact information for potential interviewees.

2.3.2 Case study methods The third part of the research was a study of five EU Member States and one non-EU European state. These case studies investigated the current management structures in place for a variety of different focal species within each country. The primary objective of the case studies of five EU Member States was to examine: 1.

The use of derogations in that country/region.

2.

The problems which have arisen from the reintroduction projects in these countries/regions.

3.

Legal and non-legal management strategies used to address these problems.22

The detailed case study of a non-EU European state examined how the presence of controversial, but highly protected, species are managed in a country not subject to the Birds and Habitats Directives. The case studies are based in part on a desk-based literature review and in part on a series of telephone interviews. The desk-based literature review provided the legal and policy framework. The problems and management strategies were identified by a series of telephone interviews with a small number of relevant stakeholders. The aim was to have telephone interviews with at least one representative from each of the following: 22

The interviews also sought views on the benefits gained from the reintroduction projects. However, it is acknowledged that this does not provide an adequate survey of the benefits of species reintroduction but reflects the subjective views of selected interviewees in a small survey where the primary focus was on the management of conflicts.

8

1. 2. 3. 4.

the competent authority and/or other relevant government agencies; the body responsible for the reintroduction project or for the management of the relevant species independent experts organisations representing land managers, land owners and land users.

In practice some stakeholders would not, or could not participate in the research, which is, perhaps, unsurprising given the time constraints of the project, as well as language barriers. Some stakeholders provided a written response only. A list of the interviews undertaken is included in Appendix 4 to this report. The telephone interviews with stakeholders addressed the following issues: 1. 2. 3. 4.

The background to reintroduction or distribution of the species in the country. The concerns (if any) of land managers, land owners, land users and other relevant groups surrounding the reintroduction and/or presence of the species. The legal and non-legal management strategies in place for the species. The benefits (if any) that have arisen from the reintroduction / presence of the species of interest, especially with regard to benefits to local communities.

9

3

RESULTS

3.1

Review of the European legal framework for species reintroduction, protection and derogations

3.1.1 Introduction The Habitats Directive aims to benefit biodiversity through the maintenance or restoration of a ‘favourable conservation status’ for natural habitats and species of wild flora and fauna of ‘Community interest’.23 The EU Biodiversity Strategy seeks to ensure that the biodiversity and the ecosystem services it provides are ‘protected, valued and appropriately restored’.24 The Habitats Directive makes provision for the special protection of species of ‘Community interest’ in Annexes II, IV or V of the Directive. Species of ‘Community interest’ is defined as meaning species which are endangered, rare or endemic but requiring particular attention.25 Annex IV listed species are those which merit a system of strict protection under the Directive. Animals are listed in Annex IV(a) and plants in Annex IV(b). In principle all species listed under Annex IV(a) of the Habitats Directive receive the same level of protection under the law (detailed below). However, there are certain exclusions within the Directive in relation to specific species in particular countries or parts of countries. Further, the European Commission guidance and jurisprudence of the European Court of Justice has consistently pointed out that the protection afforded to species must be looked at on a ‘species by species’ basis. Thus, while the European legal framework does not differentiate between species in terms of the special protection afforded, in practice there will be distinctions between the level of protection afforded to certain species. In other words, the particular attributes of the species will be taken into account in determining what constitutes disturbance of the species and destruction or deterioration of its resting places or breeding sites. Similarly, in principle, all species protected under Annex I of the Birds Directive 2009/147 are in receipt of the same special protection measures. Article 4 of the Directive states that Annex I species shall be subject to special conservation measures concerning their habitat in order to ensure their survival and reproduction in their area of distribution. This part of the paper provides a brief overview of the EU legal framework as it relates to the following issues: -

Reintroduction of species (Section 3.1.2. below) Special protection of species under the Habitats Directive Annex IV(a) and Birds Directive Annex I (Section 3.1.3) Derogations from that special protection (Section 3.1.4) Review of derogations for the six species of particular interest to this research, with particular reference to reintroduced species (Section 3.1.5) Species protection and derogation in Scotland (Section 3.1.6)

23

Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (henceforth, Habitats Directive), Articles 2 and 3. 24 European Commission, Report on Derogations 2011. 25 Habitats Directive, Article 1(g).

10

3.1.2 Reintroduction of species Is there a duty to reintroduce species? Is there a legal obligation under international or European law to reintroduce extinct species to their former habitat? There is evidence within the texts of some international and European nature conservation laws of legal obligations to reintroduce species to their former habitats. However, inconsistencies between the legal instruments and definitional difficulties, particularly relating to what constitutes ‘native species’, render the question of whether there is a legally binding obligation to reintroduce species open to some discussion.26 The Convention on the Conservation of European Wildlife and Natural Habitats (1979) (the Bern Convention) was the first wildlife treaty to encourage its contracting parties to reintroduce species. Under Article 11(2) of the Convention the contracting parties undertake: (a) to encourage the reintroduction of native species of wild flora and fauna when this would contribute to the conservation of an endangered species, provided that a study is first made in the light of the experiences of other contracting parties to establish that such reintroductions would be effective and acceptable; (b) to strictly control the introduction of non-native species.

The Convention on Biological Diversity (1992), to which the UK is a signatory,27 affirms the international commitment to the recovery of species. Article 9(c) creates a qualified obligation on contracting parties ‘as far as possible’ and ‘as appropriate’ ‘to reintroduce threatened species into their natural habitats under appropriate conditions’. This qualified obligation to reintroduce threatened species has not been translated into European law in the same terms. The Birds Directive does not impose any obligation to reintroduce species or to consider the desirability of doing so, although it appears to foresee that reintroductions will be necessary measures to ensure bird conservation.28 The Habitats Directive does not create any legal duty to reintroduce species but it does impose an obligation under Article 22: ‘to study the desirability of reintroducing the species in Annex IV, that are native to their territory where this might contribute to their conservation, provided that an investigation, also taking into account experiences in other Member States or elsewhere, has established that such reintroductions contributes effectively to re-establishing these species at a favourable conservation status and that it takes place only after proper consultation of the public concerned.’

It can be said that Article 22 simply creates an obligation to ‘study the desirability’ of reintroducing species. The obligation applies where such species reintroduction ‘might’ contribute to the conservation of the species, but this must be evidence-based.29 It is provisional on an ‘investigation’ being undertaken to establish that ‘such reintroductions’ have contributed effectively to re-establishing these species at a favourable conservation status. That ‘investigation’ must take into account experience from other Member States or elsewhere. Further, any reintroduction should only take place after proper consultation with the public concerned.

26

See, Rees, P. A. 2001. Is there a legal obligation to reintroduce animal species into their former habitats? Oryx, 35,(3), 216. 27 The UK signed up to the Convention on Biological Diversity on the 12th June 1992. 28 Birds Directive, Article 9(1)(b) permits derogations ‘for the purposes of repopulation, [and] of reintroduction.’ 29 See also Habitats Directive, Article 18.

11

The result is a highly qualified obligation to consider reintroduction, but clearly no positive obligation to reintroduce species. Nevertheless, the reintroduction of species does fit within the overarching aims of the Directive. Article 2(2) of the Habitats Directive states that measures shall be designed to maintain or ‘restore’, at favourable consideration status, natural habitats and species of wild fauna and flora of community interest. The reintroduction of species would fall within the measures intended to deliver favourable conservation status. Implementing reintroduction in practice The duty to study the desirability of reintroduction under Article 22 is also provisional in the sense that it applies to the reintroduction of species that are ‘native to their territory’. The term ‘native to their territory’ is not defined by the Habitats Directive, yet the definition of this term is vital to the interpretation of the law. Nor does the Directive indicate how far back in time a Member State should look in order to establish whether or not a particular species is native to the territory. In the absence of definition of this term Member States have some freedom to interpret it as they see fit,30 subject to the relevant policy guidance discussed further below. A recommendation of the Council of Europe Committee of Ministers to Member States on the reintroduction of species set down criteria for responsible reintroductions. Although not legally binding, it recommended that Member States: 1. (a) (b) (c) (d)

Carry out reintroductions only after conducting research to: determine the causes of extinction; analyse past and present ecological characteristics of the area concerned; propose remedies for the causes of extinction; enumerate management measures to be taken before, during, and after the reintroduction; (e) establish which subspecies or ecotypes are closest to those that are extinct or are best suited to the reintroduction area. 2. Authorise reintroduction only after remedying the causes of extinction and restoring biotopes where necessary. 3. Prohibit reintroduction where adverse effects on the ecosystem are feared. 4. Inform the local population and interested groups of the reintroduction project. 5. Prohibit collecting from a population where this would constitute a threat to it. 6. Limit the duration of reintroduction projects and, if unsuccessful, give up further attempts. 7. Ensure scientific support, supervision and documentation until the reintroduced individuals are integrated into the local biological community. 8. Inform the European Committee for Conservation of Nature and Natural Resources, and if necessary the governments of neighbouring countries, of reintroduction projects 31 and, if possible, co-ordinate reintroductions among the countries concerned.

The IUCN Guidelines for Reintroductions provide the leading policy framework for species reintroductions worldwide.32 They provide a guide for reintroduction and have no binding force in law, although they are widely accepted as the most authoritative guidance on species reintroduction. ‘Reintroduction’ has been defined by the IUCN as an attempt to establish a species in an area which was once part of its historical range, but from which it has become extirpated or become extinct.33 The IUCN Guidelines have been accepted by 30

See, Rees, P. A. 2001. Is there a legal obligation to reintroduce animal species into their former habitats? Oryx, 35,(3), 216. 31 Council of Europe Committee of Ministers, Recommendation Number R (85) 15 1985 of the Council of Europe Committee of Ministers to Member States on the reintroduction of species 1985. 32 IUCN Guidelines, 1998. The IUCN Guidelines for Reintroduction are in the process of being redrafted at the time of writing of this report. 33 IUCN Guidelines, 1998.

12

the UK nature conservation agencies and the Scottish position on reintroduction is discussed further below at section 3.1.6. 3.1.3 Special protection of Habitats Directive Annex IV(a) species and Birds Directive Annex I species Article 12 of the Habitats Directive and Article 5 of the Birds Directive establish systems of special protection for the species listed in Habitats Directive Annex IV(a) and Birds Directive Annex I. Annex IV(a) species in need of strict protection include, for example, the Wild Cat (Felis silvestris), the Otter (Lutra lutra), the Brown Bear, the Grey Wolf, the Eurasian Beaver, the Eurasian Lynx (Lynx lynx) and the Iberian Lynx (Lynx pardina). Table 1. Status of mammal species of interest to the research under the Bern Convention and Habitats Directive Eurasian Beaver

Eurasian Lynx

Grey Wolf

Brown Bear

Bern Convention

Appendix III

Appendix III Action Plan Lynx

Appendix II Action Plan Wolf

Appendix II Action Plan Bear

Habitats Directive

Annex II

Annex II

Annex II (priority)

Annex II (priority)

Annex IV(a)

Annex IV(a)

Annex IV(a)

Annex IV(a)

As the EU is one of the parties to the Bern Convention, the protection afforded to species under Annex IV(a) of the Habitats Directive must be applied in a manner that is consistent with the Bern Convention. Contrary to their differentiated protection under the Bern Convention, the status of Eurasian Beaver, Eurasian Lynx, Grey Wolf and Brown Bear is practically uniform under the Habitats Directive. All four are among the strictly protected species of Annex IV(a). All four also occur in Annex II, which lists the species for which protected areas must be designated as part of the Natura 2000 network. The only distinction is that the Grey Wolf and Brown Bear are indicated as priority species, whereas the Eurasian Lynx and Eurasian Beaver are not. Guidelines on Population Level Management Plans for Large Carnivores (Carnivore Guidelines) were issued in 2008 to provide recommendations for the application of the Directive to Eurasian Lynx, Grey Wolf, Brown Bear and Wolverine.34

34

Linnell, J., Salvatori V. & Boitani, L. 2008. Guidelines for Population Level Management Plans for Large Carnivores, a Large Carnivore Initiative for Europe (LCIE). July 2008. Report prepared for the European Commission July 2008.

13

Where species are listed under Annex II and Annex IV(a) the Commission considers that these species should benefit from protection under Article 6 and under Article 12. It is not within the remit of this research to look at the protection afforded to species under Annex II of the Habitats Directive, but it is recognised that it may be significant, for example, in relation to the possible future designation of sites for the protection of the Eurasian Beaver if formally reintroduced in Scotland.35 For species listed in Annex IV(a), Article 12 of the Habitats Directive deals with the special protection measures. Article 12(1) Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range prohibiting; (a) deliberate capture or killing in the wild. (b) deliberate disturbance of the species. (c) deliberate destruction or taking of eggs from the wild. (d) deterioration or destruction of breeding sites or resting places. (2) Member States shall prohibit the keeping, transport and sale or exchange, and offering for sale or exchange of specimens taken from the wild. (3) The prohibition referred to in paragraph 1(a) and (b) and paragraph 2 shall apply to all stages of life of the animals to which this Article applies. (4) Member States shall establish a system to monitor the incidental capture and killing of the animal species listed in annex IV(a). Member States shall use the information to decide whether to take further action to ensure incidental capture and killing does not have a significant negative impact on the species concerned.

The special protection measures for bird species protected under Annex I of the Birds Directive, including the White-tailed Eagle and the Red Kite, are similar to the provisions of the Habitats Directive Article 12. Article 5 of the Birds Directive states: Member States shall take the requisite measures to establish a general system of protection for all species of birds referred to in Article 1, prohibiting in particular: (a) deliberate killing or capture by any method; (b) deliberate destruction of, or damage to, their nests and eggs or removal of their nests; (c) taking their eggs in the wild and keeping these eggs even if empty; (d) deliberate disturbance of these birds particularly during the period of breeding and rearing, in so far as disturbance would be significant having regard to the objectives of this Directive; (e) keeping birds of species the hunting and capture of which is prohibited.

Features of the special protection measures The special protection measures under the Habitats and Birds Directives are characterised by prohibitive measures and preventative measures, which must be backed up by effective enforcement at national level.36 The special protection of species is also dependent upon effective monitoring of species. 35

The Guidance document on the strict protection of animal species of Community interest under the Habitats Directive 92/43/EEC, Environment Directorate-General of the European Commission, February 2007 (henceforth, European Commission Guidance 2007) states that ‘In relation to the species protection section, it is important to recognise that proactive habitat management measures (such as restoration of habitats and populations and the improvement of habitats) are not an obligation under Article 12 of the Habitats Directive, even though they might be under Article 6’ (see para 61). 36 See, Case C-103/00 Commission v Greece [2002] E.C.R. I–1147; Case C-518/04 Commission v Greece [2006] E.C.R. I-42; Case C-221/04 Commission v Spain [2006] E.C.R. I-4515.

14

Prohibitive measures Article 12(1) prohibits the deliberate capture or killing in the wild of Annex IV(a) species, as well as the deliberate disturbance of the species and the deliberate destruction of eggs or the deliberate taking of eggs from the wild. Deterioration or destruction of breeding sites or resting places is prohibited regardless of whether or not the action was deliberate. Only species in their ‘natural range’ benefit from this special protection.37 The strict protection of Annex IV(a) species under Article 12 has been the subject of considerable discussion at EU policy level due to the apparent difficulties with interpretation of, inter alia, ‘deliberate disturbance’, ‘deterioration’ and ‘destruction’. The Environment Directorate-General of the European Commission has produced formal guidance on the strict protection of animal species of community interest under the Habitats Directive to assist with the interpretation of these provisions.38 However, ultimately, it rests with the European Court of Justice to provide a definitive interpretation of the Directives. Therefore, the guidance provided will evolve in line with any emerging jurisprudence on this subject, and also with experience arising from the implementation of Articles 12 and 16 in the Member States. Article 12(1)(b) of the Habitats Directive and Article 5(1)(d) of the Birds Directive prohibit the ‘deliberate disturbance’ of Annex IV(a) and Annex I species respectively. Such disturbance involves the ‘deliberate’ as opposed to accidental disturbance of species. Disturbance (e.g. by noise or light) may be direct or indirect. Disturbance will have a negative effect on the species which is likely to be detrimental, e.g. by forcing them to flee. Disturbance for the purposes of Article 12 need not be ‘significant’.39 Factors taken into account in determining whether a species has been disturbed include: intensity, duration, frequency of repetition of the disturbance; species reaction to the disturbance and the particular sensitivities of the species; the season or the life cycle of the species e.g. breeding or rearing young; and sensitive periods e.g. breeding, rearing, migration and hibernation. In all circumstances a species by species approach is required. There is a body of case law arising from the European Court of Justice relating to ‘disturbance’ under both the Habitats and Birds Directives and in relation to the protection of species and the protection of habitats (see Appendix 5 to this report for a review of relevant case law). Deterioration of a breeding site or resting place under Article 12(1)(d) takes place when a positive action directly reduces the functionality of the breeding site or resting place.40 Deterioration must be human induced. Deterioration to breeding sites expressly includes “areas required for... nesting construction”.41 Deterioration is determined on the basis of species by species approach (discussed further below). Preventative measures Article 12 of the Habitats Directive requires more than the implementation and enforcement of prohibitions. Member States must adopt preventative measures. The special protection of Annex IV(a) species has a ‘preventative character, requiring Member States to avoid and prevent a number of situations that could negatively impact on species’.42 The ECJ has held that the first paragraph of Article 12 ‘requires the Member States not only to adopt a comprehensive legislative framework, but also to implement concrete and specific protection measures’.43 Further, the strict protection under Article 12(1) presupposes the ‘adoption of coherent and coordinated measures of a preventative nature’.44 Preventative measures 37

The definition of ‘natural range’ is discussed further below at Section 3.1.4. European Commission Guidance 2007. 39 Ibid, paras. 37 and 38. 40 Rudfeld, L. 2005. Contribution to the interpretation of the strict protection of species (Habitats Directive Article 12). Article 12 Working Group, 6 April 2005. 41 European Commission Guidance 2007, para 58. 42 Ibid, para 28. 43 Case C-183/05 Commission v Ireland [2007] E.C.R. I-137, para.29. 44 Ibid. para 30. 38

15

should seek to address foreseeable threats even before those threats have become a reality.45 Further ‘even if a species has favourable conservation status and is likely to have this in the foreseeable future, Member States should take preventative measures to protect the species by effectively prohibiting the activities indicated in Article 12’.46 The Commission guidance provides some examples of preventative measures including: information campaigns to raise awareness among a general or targeted public of the protection requirements for certain species; action to have species protection taken into account by relevant economic sectors (e.g agriculture, forestry) to avoid the negative impacts of certain land-use practices (including training, codes of conduct, guidance documents); inspections and preparation of national conservation plans for specific species.47 The need for preventative measures would seem to be particularly pertinent in relation to ongoing activities such as forestry or agriculture.48 ‘Ongoing activities should best be guided so as to avoid conflicts with the species protection provisions in the first place. Tools such as planning instruments, systems of prior consent, codes of conduct and concrete information or guidance are options here. Such measures should: a) form part of the requisite measures needed under Article 12 to “establish and implement an effective system of strict protection”, b) incorporate the strict protection requirements, c) offer flexibility, i.e. while recognising that absolute protection for all individuals of a species cannot be guaranteed, ensure that any harmful action takes full account of the conservation needs of the species/population concerned, d) have the advantage that they potentially protect the person engaging in an activity (i.e. from prosecution) as long as the person adheres to the measures, e) be accompanied by a legal framework for strict protection which ensures adequate enforcement by the regulatory authorities in the case of non-compliance, f) help define appropriate levels of surveillance (required under Article 11 of the Directive) and determine how these should be funded, g) be in line with Article 2(3) by taking account of economic, social and cultural 49 requirements.

Monitoring and surveillance Article 11 of the Habitats Directive obliges Member States to establish an appropriate surveillance system to monitor the conservation status of species of Community interest (as listed in Annexes II, IV and V of the Directive). According to the ECJ, Article 11 requires states to ‘guarantee’ that surveillance of Annex IV(a) species ‘is undertaken systematically and on a permanent basis’.50 The Court regards surveillance as a necessary ingredient of the special protection under Article 12.51 The European Commission guidance states that ‘Good knowledge of a species… and regular surveillance of its conservation status over time (as required in Article 11) are essential preconditions for any meaningful conservation 45

The European Commission Guidance 2007 states at para 21 that: ‘It is ... evident from the wording of Articles 12 and 1(i), and from the objective of “maintaining” a favourable conservation status, that Member States are bound by their obligations under Article 12 even before any reduction in numbers of the species has been confirmed or the risk of this protected species disappearing has become a reality.’ This view is supported by the case C-103/00 Commission v Greece [2002] E.C.R. I-01147 para 31 and case C-518/04 Commission v Greece [2006] E.C.R. I-42 para 21. 46 European Commission Guidance 2007, para 21. This view is supported by the cases: C-103/00 Commission v Greece [2002] E.C.R. I-01147, C-518/04 Commission v Greece [2006] E.C.R. I-42 and C-183/05 Commission v Ireland [2007] E.C.R. I-137. 47 European Commission Guidance 2007, para 23. 48 Ibid, pages 31 and 32. 49 Ibid, para 28. 50 Case C-6/04 Commission v United Kingdom [2005] E.C.R. I-9017, para 68. 51 C-183/05 Commission v Ireland [2007] E.C.R. I-137, para 13; See also case C-6/04 Commission v UK 2005 E.C.R. I-9017 para 68.

16

strategy’.52 Importantly, surveillance of the conservation status of animal species is also necessary for appropriately applying derogations under Article 16: ‘In order to determine whether any action would be detrimental to maintaining that species at a favourable conservation status, national authorities must have sufficient information available to assess the conservation status of the species, and to predict the likely effects of any proposed derogation.’53

In addition to the surveillance of conservation status, Member States are under a specific duty to monitor the incidental capture and killing of Annex IV(a) species.54 Member States must take the conservation measures necessary to ensure that such killing does not have a ‘significant negative impact’ on the species involved.55 The import of this requirement is illustrated by Case C-308/08 Commission v Spain relating to the prevention and monitoring of road kill impacts on the Iberian Lynx in Spain. Proportionate and appropriate Measures under Articles 12 and 16 must be implemented in a proportionate and appropriate manner.56 The measures taken by Member States should adequately address the objective pursued, i.e. maintaining favourable conservation status, while also taking account of economic social and cultural requirements and regional and local characteristics.57 This also calls for a species by species approach.58 However the guidance states that: ‘Flexibility and proportionality should not be misunderstood as concepts that reduce the obligations on Member States to act in an effective way, but need to be seen as providing room for authorities to adapt their way of implementation to the specific circumstances of each case (in conservation status terms, but also in social, economic and cultural terms)’.59

Flexible and pragmatic Article 12 of the Habitats Directive covers a high number of species, which are not only rare but also regionally and nationally abundant therefore a ‘flexible approach’ to the implementation of Article 12 is needed. Although the Annex IV(a) species are all afforded the same protection under the Directive, the application of the provisions of the Directive may vary on a species by species basis e.g. in relation to Article 12(1)(b) where the sensitivities of the particular species are taken into account in determining what constitutes ‘disturbance’. These issues are discussed further below in relation to the interpretation of Article 12. Protection of Annex IV(a) species requires a species by species approach and, as a consequence of this approach, the possibility of proposing amendments of the annexes cannot be excluded.60 Species by species approach and species action plans The European Commission guidance states that ‘efficient use of the different species conservation instruments requires a species-by-species approach’.61 Article 12 requires active protection measures for Annex IV(a) species. Species action plans can constitute an 52

European Commission Guidance 2007, para 52. Ibid para 51. 54 Habitats Directive, Article 12(4). 55 Habitats Directive, Article 12(4). 56 European Commission Guidance 2007, para 53. 57 Habitats Directive, Article 2(3). 58 European Commission Guidance 2007, para 57. 59 Ibid para 58. 60 Rudfeld, L., Article 12 Working Group, “Contribution to the interpretation of the strict protection of species (Habitats Directive Article 12)” 6 April 2005 page 8. 61 Ibid para 36. 53

17

effective means of implementing the special protection laid down in Article 12.62 Where such plans or comparably comprehensive measures specifically tailored to Annex IV(a) species are not in place, the ‘system of strict protection contains gaps’ entailing violation of the Habitats Directive.63 Thus species protection plans are strongly recommended.64 Such plans are also crucial in order to avoid problems with derogations (discussed below at Section 3.1.5). 3.1.4 Derogations from species protection The significance of the special protection of the Annex IV(a) species is that there are no exceptions to that protection unless carried out through formal derogation procedures, subject to approval by the Commission according to Article 16 of the Habitats Directive.65 Similarly there is a formal derogation procedure in place for Birds Directive Annex I species under Article 9 of the Birds Directive. A table of all the reported derogations in relation to four Habitats Directive Annex IV(a) species and two Birds Directive Annex I species of particular interest to Scotland is included in Appendix 3 of this report. The practice of using derogations across the Member States is discussed further below after consideration of the grounds for and conditions of using derogations. Article 16 sets out rules whereby Member States may derogate from the protection provisions of the Habitats Directive. Derogations, or exceptions to the special protection afforded under Article 12 may only be issued under Article 16(1) provided that: -

-

there is no satisfactory alternative; they are not detrimental to the maintenance of the species at a favourable conservation status in their natural range; and the grounds for the derogation fall within the categories listed in Article 16(1).

Thus, Habitats Directive Article 16 lays down a three stage test with certain conditions to be met for a derogation to be permissible. The European Commission Guidance states that the derogation provisions need to be interpreted restrictively.66 They must deal with precise requirements and specific situations and it is up to the competent authority in a Member State to ensure that derogations do not go against the objectives of the Directive.67 Failure to satisfy any of the three tests discussed below may render a derogation invalid and lead to enforcement proceedings under European law.

62

Case C-183/05 Commission v Ireland [2007] E.C.R. I-137, para. 14. For example, action plans and management plans for large carnivores have been compiled by the Large Carnivore Initiative for Europe. See their website at www.icie.org. Last accessed 23 March 2012. 63 Case C-183/05 Commission v Ireland [2007] E.C.R. I-137, paras 14 and 18. See also case C383/09 Commission v France [2009] O.J. C312/26. 64 Trouwborst, A. 2010. Managing the Carnivore Comeback: International and EU Species Protection Law and the Return of Lynx, Wolf and Bear to Western Europe. Journal of Environmental Law, 22,(3), 347. 65 Although see also European Commission guidance 2007. Some countries have permanent exceptions written into the Habitats Directive in relation to particular species. For the species of interest to this study the exceptions are: (1) Grey Wolf (Canis Lupus): Latvia; Greek populations north of the 39th parallel; Estonia; Spain (north of Duero); Bulgaria; Lithuania; Slovakia; Finland (within reindeer management areas as defined in paragraph 2 of Finish Act No. 848/90 of 14 September 1990 on reindeer management); (2) Eurasian Beaver (Castor fiber): Latvia; Estonia; Lithuania; Poland; Finland; Sweden (3) Eurasian Lynx (Lynx lynx): Estonia. There are no exceptions in relation to the Brown Bear (Ursos arctos). 66 European Commission Guidance 2007, page 53. Supported by cases, Case C-247/85 Commission v Belgium [1987] E.C.R. I-03029, para 7; Case C-262/85 Commission v Italy [1987] E.C.R. I-3073 and Case C-118/94 WWF Italy v Regione Veneto [1996] E.C.R. I-1223, para 21. 67 European Commission Guidance 2007, para 54.

18

1. There is no satisfactory alternative A derogation will only be allowed where there is no satisfactory alternative. The difficulty lies in determining what does and does not constitute a ‘satisfactory’ alternative. It falls upon the competent national authority (Scottish Natural Heritage in Scotland for terrestrial cases and Marine Scotland for marine cases) to consider the solutions and make this evaluation. ECJ case law68 has established that in determining a satisfactory alternative it is necessary to address the following questions:  What is the problem or specific situation that needs to be addressed?  Are there any other solutions?  If so will these solve the problem or specific situation for which the derogation is sought? In any case recourse to derogation must be a last resort.69 According to the Advocate General in Case C-10/96 the term ‘satisfactory’: “may be interpreted as meaning a solution which resolves the particular problem facing the national authorities, and which at the same time respects as far as possible the prohibitions laid down in the Directive; a derogation may only be allowed where no other solution which does not involve setting aside these prohibitions can be adopted”.

2. The derogation must not be detrimental to the maintenance of the species at a favourable conservation status in their natural range Derogations from the protection afforded by Article 12 may only be granted if ‘not detrimental to the maintenance of the populations of the species concerned at favourable conservation status in their natural range’.70 In April 2005 the Habitats Committee agreed on a harmonised framework for evaluating the conservation status of species and habitats.71 The conservation status of a species may be determined at a variety of population levels (from global to local) and geographical scales (EU; biogeographical region; Member State; individual Special Area of Conservation). In the absence of unambiguous jurisprudence from the ECJ it is not clear which of these levels constitute the benchmark for the fulfilment of Member States obligations under the Habitats Directive.72 The European Commission guidance reiterates the general definition set out in Article 1(i) of the Habitats Directive which contains the main parameters (population, dynamics, range, sufficient habitat, prospects of long term viability) for defining favourable conservation status. It also highlights the possibility of specific definitions on a species by species basis.73 For the purpose of derogations the EU Commission Guidance states that favourable conservation status should be determined at population level.74 It goes on to explain that an appropriate assessment of a specific derogation will in many cases have to be at both biogeographic or national and lower (local or site) level in order to be meaningful in ecological terms and in order to give a 68

Case C-10/96 Ligue royale belge pour la protection des oiseaux ASBL and Societe d'etudes ornithologiques AVES ASBL v Region Wallonne, intervener: Federation royale ornithologique belge ASBL [1996] E.C.R. I-06775; Case C-182/02 Ligue pour la protection des oiseaux & Ors (Environment and consumers) [2003] E.C.R. I-12105. 69 Advocate General’s Opinion in C-10/96 Ligue royale belge pour la protection des oiseaux ASBL and Societe d'etudes ornithologiques AVES ASBL v Region Wallonne, intervener: Federation royale ornithologique belge ASBL [1996] E.C.R. I-06775, para.33. 70 Habitats Directive, Article 16(1). 71 See, Document DocHab-04-03/03 rev.3 ‘Assessment, monitoring and reporting of conservation status – preparing the 2001-2007 report under Article 17 of the Habitats Directive’. Available at http://forum.europa.eu.int/Public/irc/env/monnat/home. Last accessed 23 March 2012. 72 Trouwborst, A. 2010. Managing the Carnivore Comeback: International and EU Species Protection Law and the Return of Lynx, Wolf and Bear to Western Europe. Journal of Environmental Law, 22, (3), 347. 73 European Commission Guidance 2007, para.16. 74 Ibid, para 50.

19

complete picture of the situation.75 The guidance emphasises the importance of ‘repeated or regular monitoring’ to give an indication as to the ‘appropriateness and effectiveness of the conservation measures chosen’.76 It is notable that, whilst derogations must not affect the conservation status negatively,77 the case law and the European guidance confirm that the status does not necessarily have to be favourable in advance before derogations can be granted.78 This may be significant where derogations are sought for species that have been recently reintroduced and are not yet established. In Case C-342/05 Commission v Finland 200779 the Court held that in exceptional cases derogations may be permissible in respect of populations which are not at favourable conservation status ‘where it is duly established that they are not such as to worsen the unfavourable conservation status of those populations or to prevent their restoration at a favourable conservation status’.80 The judgement explicitly affirms the interpretation from the Commission’s 2007 guidance that the removal of one or a few animals can be neutral in the sense that the prospect of a favourable conservation status is not impaired.81 According to the Commission’s 2007 guidance, however, such a flexible approach is possible only when the ultimate achievement of a favourable conservation status is warranted through ‘a clear and developed framework of species conservation measures’. There is, therefore, an important role to be played by species protection plans. Species specific conservation plans, even though they are not legally required by the Directive, could give guidance on the implementation of derogation schemes on a species-by-species basis.82 In the view of the Commission these may be an essential tool in demonstrating the compatibility of derogations with the Habitats Directive.83 The firmer the plan – i.e. the more likely it will ensure a favourable conservation status – the greater the opportunity for granting derogations where these are desirable. Such plans would have to be adapted regularly in the light of improved knowledge and monitoring results.84 Derogations are only permissible when not detrimental to the favourable conservation status of species ‘in their natural range’. How is ‘natural range’ to be determined for the purposes of species reintroductions? The European Commission’s 2007 guidance provides little assistance in determining the meaning of the ‘dynamic’ concept of ‘natural range’: ‘The natural range describes roughly the spatial limits within which the habitat or species occurs…. A natural range as defined here is not static but dynamic: it can increase and expand… If the natural range is insufficient in size to allow for the long-term existence of that habitat or species, Member States are asked to define a reference value for a range that would allow for favourable conditions and work towards this, for instance by fostering of the current range. When a species or habitat spreads on its own to a new area or territory or when a species has been reintroduced into its former natural range (in

75

Ibid, page 61. Ibid. 77 Habitats Directive, Article 16. 78 Case C-342/05 Commission v Finland 2007 E.C.R. I-4713; Rudfeld, L., Article 12 Working Group, “Contribution to the interpretation of the strict protection of species (Habitats Directive Article 12)” 6 April 2005, page 5. 79 See Appendix 5 to this report. 80 Case C-342/05 Commission v Finland 2007 E.C.R. I-4713, para 29. 81 Trouwborst, A. 2010. Managing the Carnivore Comeback: International and EU Species Protection Law and the Return of Lynx, Wolf and Bear to Western Europe. Journal of Environmental Law, 22, (3), 347. 82 European Commission Guidance 2007, page 63. 83 Ibid. 84 Ibid. 76

20

accordance with the rules in Article 22 of the Habitats Directive), this territory has to be considered part of the natural range.’85

The guidance is, however, reasonably clear that when a species spreads on its own to a new area or territory or when a species has been reintroduced into its former natural range (in accordance with Article 22 of the Habitats Directive) this territory has to be considered part of the natural range. By contrast, when individuals or feral populations of an animal species are introduced deliberately or accidentally by man to locations where they have never occurred naturally, or where they would not have spread naturally in the foreseeable future, these are considered to be outside their natural range and consequently they are not covered by the Directive.86 This presumably would cover circumstances where the species formerly did occur naturally, but could not have spread naturally and would apply to any accidental or deliberate release of animals. 3. The grounds for the derogation must fall within the categories listed in Article 16(1). Article 16(1) also sets out five categories of grounds on which derogations may be granted: (a) in the interest of protecting wild fauna and flora and conserving natural habitats; (b) to prevent serious damage, in particular to crops, livestock, forests, fisheries and water and other types of property; (c) in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment; (d) for the purpose of research and education, of repopulating and re-introducing these species and for the breeding operations necessary for these purposes, including the artificial propagation of plants; (e) to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens of the species listed in Annex IV in limited numbers specified by the competent national authorities.

Conformity to these grounds must be demonstrated if countries are to avoid challenge by the European Commission. The Finnish wolves case87 confirms that preventative killing of species is only allowed where research has ‘established that the hunting is such as to prevent serious damage’.88 Trouwborst has argued that derogations based on ground (c) above (human safety or other imperative reasons of overriding public interest including those of social or economic nature) are hardly conceivable in relation to the Eurasian Lynx and Grey Wolf, which shun human contact.89 The review of derogations undertaken during this research reveal that ‘public safety’ has, in fact, been cited amongst the grounds for derogations involving the killing of the Eurasian Lynx in Finland, Latvia, Romania and Sweden (see section 3.1.5. below and Appendix 3 to this report). Derogations on this ground are, however, most common in relation to the Brown Bear. The Carnivore Guidelines state that on rare occasions ground (c) may be invoked in respect of large carnivores ‘for the removal of rabid, aggressive, habituated or other specific individual animals that demonstrate unwanted behaviour’.90 The Commission has emphasised that Article 16(1)(a)

85

European Commission Guidance 2007, para 19. Ibid. 87 C-342/05 Commission v Finland [2007] E.C.R. I-04713 88 Ibid, para 47; See Appendix 5 to this report. 89 Trouwborst, A. 2010. Managing the Carnivore Comeback: International and EU Species Protection Law and the Return of Lynx, Wolf and Bear to Western Europe. Journal of Environmental Law , 22, (3), 347. 90 Linnell, J., Salvatori V. & Boitani, L. 2008. Guidelines for Population Level Management Plans for Large Carnivores, a Large Carnivore Initiative for Europe (LCIE). Report prepared for the European Commission July 2008, page 30. 86

21

cannot justify the removal of Eurasian Lynx, Grey Wolves or Brown Bears because of their impact on common prey species such as roe deer or red deer.91 The prevention of serious damage to property (ground (b) above) is a common ground for derogation for actions relating to the large carnivores and, also, to another species of interest in this research: the Eurasian Beaver. In relation to large carnivores it covers the elimination of so-called ‘problem animals’, but the killing of animals, for example the Grey Wolf or the lynx, can be part of a long-term management strategy where the conservation status of the species is favourable and hunting is limited and carefully regulated. The 2007 European Commission Guidance cited Latvia as an example where the Eurasian Lynx was favourable at the national level and limited and carefully regulated lynx hunting forms part of a comprehensive and long-term lynx management plan. According to the European Commission Guidance published in 2007 this practice was in conformity with Article 16(1)(e).92 However, the European Commission’s composite report on derogations for the period 2007-2008 concluded that the derogations relating to the lynx in that period could be in conflict with the species protection measures set out in the Habitats Directive. In that two year period 211 individuals were killed, compared to 112 in the previous reporting period.93 This highlights the dynamic nature of conservation objectives and the need to put adaptive management strategies in place as the conservation status of the species changes. Derogations, as illustrated above, must be justifiable on the basis that they will not be detrimental to the maintenance of the species at favourable conservation status. It is clear that any measures which relate to the capture or killing of Annex IV(a) species must be ‘selective’, ‘limited’ and ‘strictly supervised’ by the competent national authorities.94 Article 15 lays down the conditions governing the capture or killing of animal species listed in Annex IV(a) under such derogations. In carrying out actions under this article Member States must prohibit the use of all indiscriminate means capable of causing local disappearance of, or serious disturbance to, populations of the species concerned.95 It is also significant that derogation can be sought in the interest of protecting wild fauna and flora and conserving natural habitats. This ground may be important in relation to reintroduced protected species where the species has a negative impact on other protected species and habitats. The Birds Directive lays down a similar framework for derogations from the special protection afforded to Annex I bird species and Article 9 provides: Member States may derogate from the provisions of Articles 5 to 8, where there is no other satisfactory solution, for the following reasons: (a) — in the interests of public health and safety, — in the interests of air safety, — to prevent serious damage to crops, livestock, forests, fisheries and water, — for the protection of flora and fauna; (b) for the purposes of research and teaching, of re-population, of re-introduction and for the breeding necessary for these purposes; (c) to permit, under strictly supervised conditions and on a selective basis, the capture, keeping or other judicious use of certain birds in small numbers.

91

European Commission Guidance 2007, page 54. Ibid, page 57. 93 See Appendix 3. 94 Habitats Directive, Article 16(1)(e). 95 Habitats Directive, Article 15. 92

22

3.1.5 Review of species

derogations

for

protected

species,

particularly

reintroduced

The Habitats Directive Article 16(2) requires Member States to report to the Commission every two years on the derogations applied under Article 16(1) and the Commission must give its opinion within 12 months. If the European Commission considers that a Member State is in breach of its obligations under Article 16, it will notify the State accordingly. If the matter is not rectified to the Commission’s satisfaction it may bring the matter before the European Court of Justice to obtain a ruling.96 It is difficult to get a clear picture of the extent of the use of derogations across the EU in relation to reintroduced species, or indeed in relation to the management of relevant species for the reasons discussed in the methodology to this report (section 2.1.2). Notwithstanding these difficulties it is possible to make some pertinent observations about the use of derogations. The number of derogations used by Member States varies considerably between Member States: from 2 granted in Estonia to 1010 granted in the UK in 2007-2008. In this period a substantial number of derogations were issued in the interests of public health and safety or other imperative reasons of overriding public interest. A further substantial number were connected with the prevention of serious damage, in particular to crops, livestock, forests, fisheries and water and other types of property. A number related to damage to livestock resulted from the Brown Bear, Grey Wolf and Eurasian Lynx e.g. in Romania. Almost all the derogations granted under Article 16(1)(e) (to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens of the species listed in Annex IV(a) in limited numbers specified by the competent national authorities) relate to the selective killing of particular species e.g. the Eurasian Lynx and Brown Bear in Sweden. The Commission found that derogations for the killing of specimens are mainly applied to prevent serious damage to particular crops, livestock, forests, fisheries, water and other types of property and in some cases to justify the harvesting quota relative to a particular species. A table of all the reported derogations in relation to four Habitats Directive Annex IV(a) species (the Eurasian Beaver; the Eurasian Lynx; the Grey Wolf and the Brown Bear) and two Birds Directive Annex I species (the White-tailed Eagle; the Red Kite) which are of particular interest to this research is included in Appendix 3. Furthermore a survey was conducted of the use of derogations for these species across all the European Member States. Over the whole reporting period (2001-2008), the derogations relating to these species were as follows: 

There were 1,487 derogations for the Eurasian Lynx. Of those, only two derogations were for countries in which the Eurasian Lynx had been reintroduced (one in France and one in Italy). The majority of the derogations relate to the killing of lynx on grounds of public safety and prevention of serious damage to livestock.

96

See for example C-342/05 Commission v Finland [2007] E.C.R. I-04713 where the Court held that the Republic of Finland was in breach of the grounds of derogation in its authorising of wolf hunting.

23



There were 931 derogations for the Brown Bear97 relating to a minimum of 1,583 individuals.98 The vast majority of those derogations were for killing in the interest of public safety and for the prevention of serious damage. Of the total number of derogations for the Brown Bear, ten derogations related to countries in which the Brown Bear had been reintroduced. The countries concerned were France and Italy.99



There were 845 reported derogations for the Eurasian Beaver.100 Of those 845 derogations, 839 derogations relate to eight countries in which the Eurasian Beaver has been reintroduced.101 623 of those were German derogations (see the German case study on the Eurasian Beaver in Bavaria in section 3.3.6 below). A small number of the derogations for the beaver relate to ‘research, education or reintroduction’ and may, therefore, be viewed as positive conservation measures. The majority relate to the capture, deliberate disturbance and killing of beavers and the destruction of breeding sites or resting places in the interests of public safety or to prevent serious damage to property.



There were 57 derogations relating to the Grey Wolf across the reporting period for a minimum number of 398 individual animals. The majority of derogations relate to the killing of Grey Wolves to prevent serious damage to livestock. The Grey Wolf has not been reintroduced anywhere in Europe and there are, therefore, no derogations in relation to reintroduced Grey Wolf populations. The Swedish case study set out in section 3.3.3 below provides an example of the use of derogations in the management of a species which has repopulated the country naturally.



There have been a small number of derogations for the Red Kite and White-tailed Eagle in the period but in the majority of cases the means of and grounds for derogation are unspecified.102 For both species the only other reintroduction project outside the UK is in Ireland and no derogations for those species have been issued in Ireland during the reporting period.

3.1.6 Species protection and derogation in Scotland The relevant legislation implementing the Birds and Habitats Directives in Scotland is found in a number of different sources and can be rather complex. GB’s regulatory framework for nature conservation is set out in the Wildlife and Countryside Act 1981 and a vast array of amending and implementing measures, which is further complicated by the considerable 97

This is the minimum number of derogations for this species because, for the reasons explained in the research methods, the European Commission’s reporting procedure is inadequate. On 11 occasions over the reporting period countries have reported an ‘unspecified’ number of derogations for the Brown Bear. Each of these instances has been counted as one derogation, but could clearly relate to multiple derogations. 98 In 18 cases the number of individuals impacted by the derogation is reported as ‘unspecified’, therefore, by counting each of these instances as one individual this provides the minimum number of individual animals affected. 99 The only other country in which the Brown Bear has been reintroduced is Austria. It is not possible to determine whether Austria has, in practice, derogated from the special protection afforded under Article 12 in relation to the Brown Bear because Austria has not reported to the European Commission on derogations in the time period examined in this study i.e. 2001-2008. 100 The points made in notes 97 and 98 above also apply to the reporting of beaver derogations and mean that the figures cited must be taken as a minimum. 101 Belgium, Czech Republic, Denmark, Finland, France, Luxembourg, Germany and Hungary. 102 A number of these derogations must relate to species reintroduction projects. It is beyond the scope of this research, however, to look behind the information set out in the European Commission’s reporting process, which would be a very significant undertaking.

24

divergence between the law in Scotland and in England and Wales.103 The Habitats Directive was implemented in GB by the Habitats (Nature Conservation etc) Regulations 1994 and subsequent amending regulations104 which sought to bring it into line with the requirements of the Habitats Directive.105 The 1994 Regulations have now been consolidated and updated for England and Wales by the Conservation of Habitats and Species Regulations 2010.106 In Scotland, the Habitats Directive is transposed through a combination of the Habitats Regulations 2010 (in relation to reserved matters) and the 1994 Regulations. The Wildlife and Countryside Act 1981 has been extensively amended by the Nature Conservation (Scotland) Act 2004 etc and most recently by the Wildlife and Natural Environment (Scotland) Act 2011. Bird species listed under Annex I of the Birds Directive are listed in the schedules to the Wildlife and Countryside Act 1981. The Red Kite is listed under Schedule 1 of the Wildlife and Countryside Act and the White-tailed Eagle is listed on Schedules A1 and 1A of the Act, which protects nests and birds throughout the year and was inserted into the Wildlife and Countryside Act 1981 by the Nature Conservation (Scotland) Act 2004. Protection for those species listed under the Habitats Directive is achieved in Scotland by the 1994 Regulations as amended.107 In Scotland European Annex IV(a) species whose natural range includes any part of Britain are listed under Schedule 2 to the Regulations. (Note: The Eurasian beaver is not on this list at present because the desirability of reintroducing the species in Scotland is still being assessed by SNH through a trial reintroduction approach). In Scotland it is an offence to deliberately or recklessly kill, injure, capture, any individual or to harass any individual or group of wild animals. It is an offence deliberately or recklessly to disturb an individual while it is rearing or caring for its young or occupying a structure or place used for shelter or protection. The offence extends to the deliberate or reckless disturbance of animals in certain circumstances, not just while using a place of rest or shelter. Further, deliberately or recklessly taking or destroying their eggs is an offence. The protection for breeding and resting places is strict and now also includes protection through the application of the Environmental Liability Directive. In practical terms this means that land managers whose activities may disturb listed species can only proceed if they meet strict criteria for the granting of a licence to enable a derogation from the protection measures. The Wildlife and Natural Environment (Scotland) Act 2011 along with the Conservation (Natural Habitats etc) Amendment (Scotland) Regulations 2011 have allowed Scottish Ministers to delegate all their species licensing function to Scottish Natural Heritage (SNH). The requirements of Article 16(1) of the Habitats Directive are transposed into regulation 44 of the 1994 Regulations (as amended). Licences are only available for certain purposes listed in regulation 44(2). The purposes include scientific or educational purposes, conservation, ‘preserving public health and safety or other imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment’ and the 103

For comment on the complexity of UK nature conservation law and the issue of devolution see C.T. Reid. 2009. Nature Conservation Law, 3rd Edition, W Green. 104 The main relevant regulations for present purposes include the Conservation (Natural Habitats etc) Amendment (Scotland) Regulations 2007 (SSI 2007/80); the Conservation (Natural Habitats etc) Amendment (No.2) (Scotland) Regulations 2007 (SSI 2007/349); Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007 (SI 2007/1842); Conservation (Natural Habitats etc) Amendment (No.2) (Scotland) Regulations 2008 (SSI 2008/425); Conservation (Natural Habitats etc) Amendment (Scotland) Regulations 2011 (SSI 2011/155). 105 Conservation (Natural Habitats &.) Regulations SI 1994/2716. The regulations did not fully implement the Directive resulting in infraction proceedings in 2005 in case C-6/04 Commission v UK [2005] ECR I-5261. See C.T. Reid and M. Woods. 2006. Implementing Nature Conservation Law. Journal of Environmental Law, 18, (1), 135. 106 The Conservation of Habitats and Species Regulations 2010 SI 2010/490. 107 See note 105 above.

25

prevention of serious damage to property including crops, livestock and fisheries. A licence can be granted only where there is no satisfactory alternative and the action will not be detrimental to the maintenance of the population of the species at favourable conservation status in their natural range.108 Licences can be granted to individuals or to a class of persons and a licence must specify the species affected, the maximum number of specimens that can be taken and the methods to be used.109 As is commonly the case, the UK has no legislation relating specifically to the reintroduction of species. Reintroductions within the UK will be guided by the JNCC policy on translocations.110 The IUCN Guidelines for Reintroductions are accepted by all the UK statutory nature conservation bodies. The Joint Nature Conservation Committee (JNCC) policy for species translocations seeks to establish a policy for the UK which is in line with the IUCN guidelines. The Wildlife and Countryside Act 1981, makes no specific provisions for the encouragement of reintroductions, but does strictly control releases to the wild. The Wildlife and Natural Environment (Scotland) Act 2011 includes provisions which are important for species reintroduction, and will make it an offence to release, allow to escape, or cause any animal to be outwith its native range. 3.1.7 Conclusions from the legal review The significance of the special protection of the Eurasian Beaver under Annex IV(a) of the Habitats Directive and to the White-tailed Eagle under Annex I of the Birds Directive is that there are no exceptions to that protection unless carried out through formal derogation procedures, subject to approval by the Commission according to Article 16 of the Habitats Directive or Article 9 of the Birds Directive. However, the policy framework, the case law and the experiences of the case study countries examined in the following part of this report suggest that at European level a reasonably pragmatic approach is taken to the special protection of these species. The system of legal protection for animal species protected under Annex IV(a) of the Habitats Directive is strict but the protection afforded to species under Article 12(1) of the Habitats Directive leaves some uncertainty in the interpretation of the provisions and in the flexibility for national implementation. EU policy guidance in relation to species protection and interpretation, particularly in relation to ‘disturbance’ and ‘deterioration’ of breeding and resting sites is instructive and there is a developing body of jurisprudence from the European Court of Justice. The European policy guidance on the implementation of the strict protection of species suggests that Member States can take a flexible and pragmatic approach to the protection of these species. Nonetheless, there are difficult grey areas surrounding the interpretation of both the Birds and Habitats Directives as illustrated by the discussion above and the case law review (Appendix 5 to this report). The only circumstances in which the deliberate taking or killing of species protected under Annex IV(a) of the Habitats Directive or Annex I of the Birds Directive are permitted are: where the country is excluded from delivering protection to that species under an express exclusion in the annexes to the Directives; or with a derogation under Article 16 of the Habitats Directive or Article 9 of the Birds Directive. 108

Ibid, regulation 44(3); The Scottish Natural Heritage has produced guidance on the tests which is available at http://www.snh.gov.uk/docs/B896394.pdf and http://www.snh.gov.uk/docs/B896418.pdf. Last visited on 23 March 2012. 109 Ibid, regulation 45. 110 McLean, I.F.G. 2003. A Policy for Conservation Translocations of Species in Britain. Joint Nature Conservation Committee. Available from the Joint Nature Conservation Committee website http://jncc.defra.gov.uk/page-2920. Last accessed 23 March 2012.

26

The use of derogations under the Habitats Directive and Birds Directive have been reviewed (Appendix 3 lists all the reported derogations for the six species of interest to this research: Eurasian Beaver; Eurasian Lynx; Grey Wolf; Brown Bear; Red Kite and White-tailed Eagle) and the results have been summarised and discussed in section 3.1.5 above. The research reveals a surprisingly high recourse to derogations for specially protected species under Annex IV(a) of the Habitats Directive and demonstrates that derogations to capture, kill or otherwise interfere with protected species are part of the long-term management strategies adopted for certain species in particular countries, e.g. the Eurasian Lynx in Latvia or the Eurasian Beaver in Germany. The fact that a species has been reintroduced into a country in order to restore it to its former natural habitat does not seem to discourage the use of derogations to manage the species and Germany’s management of the Eurasian Beaver is a particularly pertinent illustration of that point. Nevertheless, derogations can only be used in circumstances where they meet the tests set out in Articles 16(1) of the Habitats Directive and Article 9 of the Birds Directive. 3.2

Survey of European reintroductions of specially protected species

3.2.1 Survey of reintroductions of species listed under Annex I and Annex IV(a) of the Birds and Habitats Directives respectively within European Union Member States The review of Annex I of the Birds Directive and Annex IV(a) of the Habitats Directives revealed 499 species, or groups of species, listed on the annexes; although this figure excludes species that are listed on the annexes and now known to be extinct. Once the inventory of protected species relevant to this research was established, the geographic range of each species was recorded; including the listing of all EU Member States where individual species occur (Appendix 1). Having established the geographic distribution of the species listed under Annex I of the Birds Directive and Annex IV(a) of the Habitats Directives within the EU, research was then undertaken to identify if any of the species had been reintroduced within EU range states; and, if the reintroduction had occurred prior to, or after, the relevant Directive was implemented (Appendix 1). The survey revealed that, of the 499 species or groups of species listed under the relevant annexes of the Birds and Habitats Directives, 65 species had been reintroduced to EU Member States in a total of 129 separate reintroduction projects. Of the 65 species that been reintroduced, 62 of these had been reintroduced since the appropriate legislation was enacted in a total of 111 separate reintroduction projects. Our review suggested reintroductions were seen as a conventional and valuable conservation tool across EU Member States with a total of 23 EU Member States reintroducing species listed under either Annex I of the Birds Directive or Annex IV(a) of the Habitats Directives. Of these 23 countries all had reintroduced species since the relevant legislation was implemented. When the reintroductions were analysed by taxa there was a bias towards reintroductions of vertebrates over invertebrates (see Table 2 below). Only seven invertebrate species from just two taxonomic groupings (Lepidoptera – notably all four species were butterflies, and Mollusca) were reintroduced from a total 128 invertebrate species of nine separate invertebrate taxonomic groups listed. With only 5.5% of all invertebrate species listed having been reintroduced into an EU Member State, this contrasts with the figure of 16% of all vertebrate species listed having been reintroduced into an EU Member State. In total 58 species of vertebrate from all 5 taxonomic groups listed were reintroduced into an EU Member State out of a total of 371 vertebrate species listed. (This research has only reviewed national and regional, rather than local, reintroductions. It is possible that many of the reintroductions for ‘smaller’ species are done at the local level.)

27

Of the six species of particular interest to this research (Eurasian Beaver, Brown Bear, Eurasina Lynx, Grey Wolf, Red Kite and the White-tailed Eagle), all have been reintroduced into an EU Member State with the exception of the Grey Wolf (see Table 4 below). Interestingly the Eurasian Beaver has been reintroduced into 18 separate European Union Member States, far more countries than any other species of particular interest to this study; and a considerably greater number of times than any other species listed under Annex I of the Birds Directive or Annex IV(a) of the Habitats Directives. Full details of the reintroductions of species listed under Annex I of the Birds Directive and Annex IV(a) of the Habitats Directives within EU Member States can be found in Appendix 1 of this report. 3.2.2 Survey of the presence of the six species of particular Interest to this research within non-European Union European countries The survey of the presence of the six species of interest to this research (Eurasian Beaver, Brown Bear, Eurasian Lynx, Grey Wolf, Red Kite and White-tailed Eagle) in non-EU European countries revealed the presence of at least one of the species in 13 separate nonEU European countries (Appendix 2). Additionally all six of the species of particular interest were found to be present in at least one non-EU European country (see Table 3 below). The three mammalian carnivores were found to be widespread across many non-EU European countries, with the Beaver and the White-tailed Eagle also found in several countries. However, the Red Kite could only be confirmed breeding in one non-EU European Country (Switzerland), although it may breed in very low numbers (30% of their herd to lynx attacks. They would rather see a reduction in the lynx population. Public Response to the Management System The current management system receives strong support from both conservationists and hunters. The system is valued by hunters as it actively engages hunters in the management of the lynx and consequently provides them with an additional game species. It also ensures lynx do not reach a level where deer hunting may become impacted; although there are limited cases of localised lynx impacts on deer populations. The Norwegian Association of Hunters and Anglers is extremely supportive of the system and considers it “a very good system”, this contrasts significantly with their view of the current Norwegian Grey Wolf Management system (see section 3.3.7.3 of this report). Conservationists support the current system as it ensures the lynx population in Norway will remain stable. However, some concern is raised about the government set national population limit. The current population target is not based on a scientific estimate of a viable lynx population size for Norway, but is instead arbitrarily based on the 1997 national population estimate. The current limit does appear to be sufficient for the lynx to survive in Norway, and as the Norwegian population is not a discrete population but part of a wider Scandinavian population, in that context it can be seen as a healthy population. The authors of this report were unable to interview representatives of the livestock industry or reindeer herders in Norway. However, discussions with the interviewees and the high rate of livestock loss to lynx predation (estimated at 6,000 – 9,000 per annum by the independent expert interviewed for this report) suggest there is considerable concern among livestock owners and herders in Norway about current lynx numbers and many would prefer a decrease in the lynx population throughout Norway. Benefits 

Hunters have benefitted from the presence of lynx and the current management system as they now have the possibility of an additional quarry species. However, this benefit is not equally shared as few hunters get the possibility to hunt lynx as it occurs at low population densities.

58



Hunters also appreciate the chance to be involved in the management of a species.



It is not possible to commercialise lynx-watching tourism or lynx-hunting tourism due to the lynx’s reclusive behaviour and its presence at low population densities.

3.3.7.3

Grey Wolf in Norway

Government bounties for Grey Wolves were issued in the 19th century and by the 1960’s the Grey Wolf was extinct from Scandinavia. Natural recolonisation by Russian individuals occurred in the 1980’s and 1990’s and within Norway there are currently three reproducing packs, all confined to the Wolf Management Zone near the Swedish border. Additional individuals cross the border from Sweden into other parts of Norway but are not permitted to form reproducing packs. The total Norwegian Grey Wolf population is between 25 and 30 individuals. Concerns Many land use groups have concerns about the current Grey Wolf population in Norway including; sheep farmers, reindeer herders, moose hunters, deer hunters, as well as, many people living in rural areas who do not participate in these land use activities. Concerns include: 

Both reindeer herders and sheep farmers are concerned about the effect of Grey Wolves on their livestock and often do not support the presence of wolves in Norway



Hunters are concerned about Grey Wolf attacks on dogs during moose hunting and the effect of wolves on deer numbers and behaviour.



The Norwegian Association of Hunters and Anglers which represents 120,000 Norwegian hunters is not opposed to the presence of Grey Wolves in Norway; however they object to the current Norwegian wolf management strategy. They would prefer to see Grey Wolves more widespread across Norway, but at a low population density.



They also believe hunters should have the right to kill problem Grey Wolves as they believe only some wolves attack and kill hunting dogs and these wolves should be removed.



They would prefer to see Grey Wolves managed under a similar system to the Norwegian lynx management system; however, they believe wolves should never be allowed to reside in Western Norway, where sheep farming dominates, and northern Norway, the reindeer rearing area. The Norwegian Association of Hunters and Anglers also believes the current wolf management system doesn’t work as they believe the Grey Wolf population density within the management zone is too high leading to unnecessary conflict with local communities and the appearance that Grey Wolves have priority over local needs.



Many people in the wolf management zone fear the Grey Wolf’s presence and are concerned about the possibility of wolf attacks on children and pets.



Additionally conservationists are not content with the current system as it restricts Norwegian Grey Wolves to a small, vulnerable and genetically bottlenecked population.

59

Management Strategies 

Grey Wolves have been legally protected in Norway since 1973.



The current population is restricted to three reproducing packs, confined to a wolf management zone along the southern edge of the Swedish border.



Some individual Grey Wolves disperse across the border from Sweden into areas outside the wolf management zone; however, they are not allowed to form reproductive packs.



Legal hunting of Grey Wolves, both inside and outside of the wolf management zone, is permitted during the winter open season and the quotas are set nationally by central government. The quotas are political and not based on scientific evidence.



Outside of the legal hunting season, permits can be issued for the hunting of individual nuisance wolves. Often nuisance wolves are killed by government wildlife officials using equipment unavailable to ordinary hunters e.g. helicopters.



Hunters resent the involvement of state wildlife officials in removing nuisance wolves and would rather they were given sole responsibility for this role.



If a member of the public witnesses a Grey Wolf attack they are allowed to intervene and kill the wolf.



Within the wolf management zone government education programmes aim to reduce the fear among local residents and programmes are also run to reduce illegal hunting of Grey Wolves within the management zone.

Benefits Conservationists welcome the presence of the Grey Wolf, as do many people in Norway – particularly in urban areas. 3.3.7.4

White-tailed Eagle in Norway

Before receiving legal protection in 1968 government bounties were issued for White-tailed Eagles causing the population to significantly decline. Surviving individuals were confined to remote and inaccessible coastal skerries where human populations were absent. This led to many conservationists incorrectly assuming that the White-tailed Eagle was a coastal species. Hence it’s incorrect alternative name of Sea Eagle. In recognition of its small and vulnerable population the Norwegian Ornithological Society initiated a major conservation project, Project Sea Eagle, in the 1970s with the aim of increasing the Norwegian population. Following this intervention the Norwegian White-tailed Eagle population has rapidly increased and is now estimated to be c.2,500 pairs nationally. Norway currently has the largest White-tailed Eagle population of any country. Concerns It was not possible to interview representatives of the livestock industry, reindeer herders, foresters or windfarm developers in Norway. However, discussions with an independent expert suggest that these land use groups had only limited and localised concerns about the presence of White-tailed Eagles.

60



Some reindeer herders and sheep farmers claim to lose livestock to White-tailed Eagle attacks. However, following a Norwegian research study the Norwegian Government does not consider these claims to be genuine and consequently does not pay compensation to sheep farmers or reindeer herders.



The independent expert considered conflict between foresters and White-tailed Eagle conservationists to be minimal. The majority of Norwegian forestry is conducted in winter, when the ground is frozen, and this minimises disturbance to White-tailed Eagle nests.



Additionally the independent expert concluded that the amount of trees available for foresters and White-tailed Eagles in Norway was great enough that foresters were able to shift their operations to accommodate nesting White-tailed Eagles and Whitetailed Eagles could quickly find replacement nesting locations if their nesting site was felled in the winter.



The construction of a wind farm on the Smøla Archipelago resulted in, and continues to cause, the mortality of White-tailed Eagles (7-10 per annum). Despite this mortality, numbers of breeding pairs on the Smøla Archipelago remains stable as pairs have shifted their nest sites away from the areas of high disturbance around the turbines to areas of lower disturbance along the coast.  

  

The independent expert concluded that the Norwegian population is large enough to accommodate the additional mortality of 7-10 birds per annum. However, if many wind farms were to be built in Norway with the same rate of mortality as Smøla then the White-tailed Eagle population may decline.



However, the extensive body of research generated by the Smøla wind farm should assist developers in ensuring the mortality levels witnessed at Smøla do not occur again. Consequently, the independent expert concluded that increased wind farm developments in Norway will most likely not lead to a significant increase in additional mortality for Norwegian white-tailed eagles. The independent expert did not believe an increase in wind farm developments, and a healthy white-tailed eagle population were mutually exclusive in Norway.



A representative of the Norwegian Association of Hunters and Anglers stated that hunters and fishermen do not consider White-tailed Eagles a problem species for any of their activities.

Management Strategies 

White-tailed Eagles are strictly protected in Norway, and have been since 1968.



Originally compensation was paid to reindeer herders and sheep farmers for losses from White-tailed Eagle predation. Compensation has now been discontinued due to research conducted by the Norwegian Government which suggested White-tailed Eagles were responsible for an insignificant level of livestock mortality.



Reindeer herders have recently petitioned the government for compensation for loses arising from White-tailed Eagle predation but this has again been refused due to lack of evidence.



Tree felling is not allowed to occur within 50m of an occupied White-tailed Eagle nest.

61



The developers of new wind farms have to prove the development will not cause significant harm to White-tailed Eagle populations.

Benefits Many Norwegians take great pride that their country supports the largest White-tailed Eagle population of any nation and White-tailed Eagle watching is often viewed as integral part of a holiday to rural, and especially coastal, Norway. White-tailed Eagle tourism is common place in Norway with one town, Bodø, referring to itself as ‘The Sea Eagle Town’ with a membership club available to tourists if they successfully see a White-tailed Eagle in the town. Many tourism companies offer White-tailed Eagle safaris. 3.3.8 Case study discussion As Ireland is the only EU country, other than the UK, to have reintroduced the White-tailed Eagle; it provides the most appropriate case study for this species. However, since the reintroduction is in its early stages, it is difficult to draw many conclusions from the Irish experience to date. The interviews did highlight the concerns of farmers over lamb predation and there are limited strategies in place to address this issue. However, given that there is little scientific evidence to suggest that White-tailed Eagle do pose a significant threat to lambs; the proposed management response is, perhaps, appropriate. The most significant concern highlighted by the Irish case study was not related to the management of the species but to the management of the expectations and interests of land owners and managers who perceive their working activities to be impacted by the reintroduction. The case study highlights the need for effective stakeholder consultation in reintroduction projects to be undertaken prior to the start of the reintroduction. Engagement with stakeholders at an early stage allows for management strategies and monitoring protocols to be altered to take account of stakeholder concerns. Effective communication with affected parties must then continue post-reintroduction, including the provision of information on the realistic threats posed by the reintroduced species and, where appropriate, on the management options available to address them. The Eurasian Beaver has been very successful at recolonising many of the countries where it has been reintroduced. Latvia, Germany (Bavaria), the Netherlands and Norway provide a range of interesting case studies relating to the management of the Eurasian Beaver. The case studies reveal some consistency between the issues considered problematic; generally relating to beavers interference with farming, forestry, access routes and water courses. Although there are some consistencies on the issues considered problematic, the extent to which they are perceived as a problem varies considerably between the case studies. In cases where numbers are low (e.g. Netherlands) or management is considered effective (e.g. Germany, Netherlands and Norway), there are few concerns. However in Latvia, where the beaver was reintroduced in the 1930s, a unique set of circumstances has enabled the species to reach very high population densities throughout the country. The population is now large, management is ineffective and the species is viewed by many as a pest. Latvia has had a permanent exception in relation to the Eurasian Beaver inserted into the Habitats Directive Annex IV(a) since it’s accession to the EU. Therefore, it does not need to make recourse to derogations in relation to this species and beavers can be legally hunted and killed. Despite this, the main concern relating to beaver management in Latvia is that there is no co-ordinated strategy from central government to address problems arising. Rather, responsibility seems to fall on local landowners and hunters. The lack of government intervention in what is seen by many, especially those in the forestry industry, as a major national problem is considered a barrier to solving this issue. Due to the reliance on unmotivated local hunters, beaver management is often inadequate, patchy and

62

uncoordinated across much of Latvia. This allows the Latvian beaver population, which has already expanded due to land use changes, to expand even further. Recent efforts to extend the beaver hunting season do not seem (according to interviewees) to have caused any decrease in beaver populations so far. Without a co-ordinated, national strategy in place, the beaver population continues to expand and, for some of the interviewees, the problems associated with the beaver seem to outweigh the benefits of the reintroduction. Given the unique set of circumstances that occurred in Latvia; the post soviet collapse of agriculture leading to the abandonment of large areas of low-lying agricultural land with a complex network of dykes and ditches, it is highly unlikely that the Latvian situation would ever be replicated in Scotland. However, Latvia does provide an example of the need for effective management plans and provides a warning for the consequences of not responding to changing conditions. The Netherlands provides an example of a relatively recent Eurasian Beaver reintroduction (1988) where it appears no significant concerns have yet arisen. This is despite the challenges beavers can potentially cause in such a densely populated, intensively managed and hydrologically complex landscape. The management of the beaver falls to governmental bodies and resort is had to derogations for the destruction of breeding or resting sites where appropriate, although there has been no killing of beavers in the Netherlands to date. The Netherlands case study demonstrates the importance of monitoring and research as the intensive monitoring efforts have allowed the identification of potentially problematic behaviours before serious damage can be caused. Additionally the research and implementation of beaver unfriendly dykes should allow for easier management of the Eurasian Beaver in the Netherlands. The length of the Eurasian Beaver reintroduction project in Bavaria (over 40 years) provides an interesting case study for the potential long term management strategies that are required for a beaver reintroduction. Initially beaver management in Bavaria was not well co-ordinated and was mostly reactive in nature. The main management solution was either preventative measures e.g. anti-beaver paint, or translocation of problem individuals into areas where they could not interfere with human activities. This strategy was successful when the population was small and the population density was low. However, as the population has reached carrying capacity for large areas of Bavaria it is no longer practical to translocate individuals. This led to a rethink of the Bavarian beaver management programme and the implementation of a well co-ordinated network of expert beaver consultants who are available to quickly provide effective advice to concerned land owners and users. The management strategy now allows land owners and users to get advice before problems get out of control and the system works to not only reduce land owner and user tension; but also leads to a reduction in beaver killings as beaver consultants are often able to provide nonlethal management advice. In combination the German federal nature conservation law and state law provide a legal framework which ensures the protection of the species, whilst providing exceptions. The German federal legal framework ensures that at national level the beaver receives the strict legal protection required under the Habitats Directive. Yet exceptional measures can be justified in individual cases according to s45(7) of BNatschG. The Bavarian law provides for general exceptions regulated under section 2 of AAV. Our interviews suggest that this strategy allows for the swift and effective implementation of derogations and results in the death of 5% of the beaver population each year. Although this additional mortality clearly does not affect the level of population growth in Bavaria it does highlight that, once a beaver population establishes itself, the regular use of lethal methods

63

may be needed. This extensive resort to derogations for the beaver in Bavaria has, however, been highlighted as a matter of concern for the European Commission although no formal proceedings have to date been pursued against Germany and there is no indication at the present time that there are likely to be. The Bavarian beaver management plan therefore seems to provide a successful example of matching the needs of land users with the conservation need of the beaver population. The independent expert consulted in Bavaria stressed that their solution only came about after the lessons learnt from years of ineffective management and poor communication with land owners that led to unnecessary frustrations and antagonism between land users and conservationists. Although the system has led to a reduction in conflicts and has continued to allow the beaver to thrive it is open to criticism for being expensive and overly bureaucratic.190 A further interesting point about the Bavarian beaver management strategy is the distinction drawn between natal and non-natal dams. The Federal Conservation Act Section 19 requires the protection of the “breeding sites and resting places” of Annex IV(a) species, in line with the Habitats Directive.191 In Bavaria, for practical purposes, this has been interpreted to mean that natal dams are protected, while non-natal dams are not protected. While the German Federal law has clearly transposed the provisions of the Habitats Directive Article 12 correctly, it is not clear whether the interpretation of this provision to exclude non-natal dams and lodges is in compliance with the requirements of the Directive. Similarly, the status of the application of general exceptions to the protection of beavers in European law is unclear. In Norway, where beaver management is not subject to the constraints of the Habitats Directive, problem beavers can be dealt with either by hunting in the open season or by applying for a licence in the closed season. Conflicts between conservationists and land owners or users over beavers appear to exist rarely in Norway. As effective legal management options are available to land owners for the control of beavers on their land this reduces animosity between land owners and government and diminishes the view that outside authorities are imposing restrictive burdens on local communities. It is believed very few beavers are illegally killed in Norway because of the accessibility of legal management 190

It was not possible for the purposes of this research to determine the exact cost of the Bavarian beaver management strategy but one interviewee suggested the following figures for 2011: €350,000 in compensation payments for damage to forestry, agriculture and fish hatcheries: €90,000 for the employment of two full-time beaver consultants, including travel and office expenses: and €360,000 per annum in monthly payments to local beaver consultants. Local beaver consultants receive a nominal payment of between €100 and €200 per calendar month, this figure calculated from an average of €150 per month i.e. 150x200x12 = 360,000. It was not possible to determine the costs involved in the provision of preventative measures by municipalities e.g. beaver netting. These costs are borne by individual municipalities and the information is not centrally collated. Similarly there may be travel expenses for local beaver consultants but this information is not readily available. It is perhaps worth noting that the European Commission made a statement on the conformity of the Bavarian beaver compensation payments with the Treaty on the Functioning of the European Union concluding that the compensation payments are compatible with the Treaty. See European Commission Statement on State Aid / Germany (Bavaria), Aid No.SA 33516 (N/2011), Compensation for damage caused by beavers, Brussels 2009. Available at http://ec.europa.eu/competition/state_aid/cases/241705/241705_1284059_87_2.pdf (accessed 20/06/12). 191 Federal Conservation Act 2010 Section 19(1) Any damage to species and natural habitats within the meaning of the Environmental Damage Act, any damage that has significant adverse effects on reaching or maintaining the favourable conservation status of habitats or species. Section 19(3) provides that the ‘natural habitats’ referred to in 19(1) include the breeding sites and resting places of Annex IV species.

64

options. It is worth contrasting the situation in Latvia and Norway. Both have large populations, yet perceptions of problems vary hugely. In Latvia, there is a feeling that the problem is out of control, there is no government intervention and Eurasian Beaver problems are identified by landowners and controlled by hunters as a game species. However, hunters have little interest in hunting the Eurasian Beaver, so control measures are ineffective. In Norway, by contrast, the state provides a solution to the problem; making it easy for land managers to get a licence to deal with problems, so they feel that they have control over the issue. These case studies suggest that an effective way of managing future problems and conflicts of interest in relation to the Eurasian Beaver may be to involve both landowners and the state in designing an inexpensive and non-bureaucratic, legally compliant programme for dealing with problems as and when they arise. Sweden provided an opportunity to consider management strategies in place for the Grey Wolf, which has not been reintroduced anywhere in Europe. Although there has not been a formal reintroduction of the Grey Wolf in Sweden, the Grey Wolf has recolonised there naturally, having been hunted to extinction in the first half of the 20th century. Attitudes towards the Grey Wolf are more extreme and reflect the increased risk this species represents. As a large carnivore the Grey Wolf presents a particularly challenging set of circumstances for management and there are many well-founded concerns relating to predation on semi-domestic reindeer, livestock, wild deer, as well as, concerns surrounding attacks on dogs, effects on hunting and human fear of Grey Wolf presence. The main management strategy to address these issues in Sweden has been licensed hunting. This appears to have been undertaken without the basis of a justifiable derogation under the Habitats Directive. The Swedish Environmental Protection Agency had licensed the hunting of Grey Wolves during specific dates with the years of 2010 and 2011. Recently a second licensed hunt was called off following action taken by the European Commission in the form of a reasoned opinion. Nevertheless, it seems that Sweden has continued to pursue a deliberate policy to keep the north of Sweden, where reindeer populations are large, wolffree. In Norway only three packs of Grey Wolves are allowed to survive in specific regions. Outside these regions they are killed. Whilst conservationists are concerned that the Grey Wolf population is too small and not viable, hunters and farmers consider that there are too many wolves and that they pose a threat to human life, livestock and hunting practices. Problem Grey Wolves are killed by government officials, but conflicts of interest are ongoing and bitter. The small Eurasian Lynx population in Bavaria is thought to have boosted the local economy and so far has led to few conflicts, although hunters have expressed some concerns. The lynx mainly occur in state forests and away from livestock areas. In Norway the population is widespread and causes some conflicts regarding the predation on sheep, reindeer and roe deer; particularly with farmers. However, compensation schemes are in place. There is also a quota dictated by central government that allows hunters to remove a certain number of individuals form specific regions. The population is monitored by rangers and the scheme has support from both the hunting and conservation communities. The case studies reveal the use of derogations for reintroduced protected species. Although there have been no derogations for the White-tailed Eagle in Ireland, the other four of this study’s five EU case studies have used derogations under Article 16 of the Habitats Directive to manage the species relevant to this study: 

Germany has issued a total of 623 derogations relating to its Eurasian Beaver population and related to the increase of conflicts with water supplies, agriculture and

65

forestry.192 Some derogations allowing the scaring away of the beaver have been issued on a permanent basis. The Composite Report on Derogations193 concluded that the German derogations relating to the beaver (particularly those relating to preventative measures and to permanent derogations) are probably in conflict with the species protection measures under the Habitats Directive. At time of writing the European Commission has not instigated any action against Germany on this issue or issued any formal warning. 

The Netherlands has issued derogations in the 2007-2008 biennial reporting period in relation to the Eurasian Beaver. The majority of the derogations allowed deterioration or destruction of breeding sites or resting places. No animals were killed.



Sweden has issued derogations in each reporting period relating to the killing of the Grey Wolf to prevent serious damage to livestock.



Latvia has a permanent exception in relation to the Eurasian Beaver inserted into the Habitats Directive.194 Therefore, it does not need to make recourse to derogations in relation to this species. However, since accession to the EU it has used derogations fairly extensively for the killing of the Eurasian Lynx. The European Commission Report on Derogations (2007-2008) concluded that the derogations relating to the Eurasian Lynx could be in conflict with the species protection measures set out under the Habitats Directive, although no formal action has been instigated.

The final conclusion, therefore, that one might make in relation to derogations for protected species is that for the species of interest to this research, with the exception of the Whitetailed Eagle, derogations appear to be an important aspect of the management strategies to deal with reintroduced species, albeit that the use of a derogation should be a matter of last resort. The circumstances in which it might be appropriate to resort to the use of derogations for reintroduced protected species are further discussed in the following and final chapter of this report.

192

The exact number of derogations relating to the Eurasian Beaver in this period is not stated but the killing, capture, disturbance, and destruction of breeding and resting sites are specifically cited as the main types of derogations, resulting in the killing of 537 individuals and 164 captures (European Commission, Report on Derogations 2011, page 20). Similarly, during the 2003-2004 reporting period one of the main reasons for derogations was reported as the prevention of serious damage by the Eurasian Beaver (European Commission, Composite European Report on Derogations in 2003-2004 According to Article 16 of Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora (The Habitats Directive) 2007). 193 European Commission, Report on Derogations 2011. 194 When the Baltic countries were given this exception on their recent accession to the EU they already had substantial Eurasian Beaver populations.

66

4

DISCUSSION AND RECOMMENDATIONS

4.1

Discussion points

Maintaining consistency with the Habitats and Birds Directives must be the central priority for Scotland and the rest of the UK. The key question for Scotland is how to maintain or restore a viable population whilst effectively managing the conflicting interests of all parties involved? The reintroduction of species may bring significant benefits in increased biodiversity and in ecotourism. However, reintroduction projects need to find a balance between securing these benefits and protecting the rights of those who may suffer economic loss as a result. Many of the species considered for reintroduction in Scotland have disappeared from Scotland’s ecosystems because they were considered a threat to livelihoods. Therefore any schemes that attempt to reintroduce such species are likely to face some form of opposition from some members of rural communities. It is important, therefore, that these potential disagreements and conflicts are considered and prepared for at the outset.195 The reintroduction into Scotland of species meriting special protection under Annex IV(a) of the Habitats Directive and Annex I of the Birds Directive may give rise to some concerns for some landowners and managers given that they do not have past experience to rely on in the management of these species, for example the Eurasian Beaver (although this is still at the trial reintroduction phase in Scotland). The survey of European reintroductions reveals that reintroductions are widespread across many of the European states and there is considerable experience elsewhere of managing the species which are of particular Scottish concern. The case studies serve to highlight some of the lessons that can be learnt from the experience of other European countries for the White-tailed Eagle, the Eurasian Beaver, the Eurasian Lynx and the Grey Wolf. Albeit for a small number of animal species and for a small number of selected case studies they demonstrate a range of legal and non-legal management strategies to deal with concerns or conflicts arising. The case studies show that the perceived success of reintroduction programmes varies across species and countries and they highlight some important factors related to this. The ecological characteristics of the species are obviously important, specifically; 1) their ability to reproduce and disperse, 2) the impact they have on other species and habitats, 3) whether suitable habitats and food are available. As important are social factors such as what the perception is of the impact of reintroduction and the degree of threat to traditional hunting practices, to land use and livestock, to human life and to habitats. Another key social aspect is how effectively communities and stakeholders feel that they can deal with problems should they arise. These case studies highlight important considerations for the reintroduction of potentially problematic species that have been discussed elsewhere.196 It is important that reintroductions should involve wide and open consultations with stakeholders, so that fears can be understood and appropriate evidence collated before and during a reintroduction. Any scheme should incorporate effective monitoring, evaluation and remedial management, not just for the short-term when the population is small, but also the longer-term issues in the event of a scheme being successful. It is clear that when populations are established, some management schemes can be expensive, although these costs could be reduced through involvement of stakeholders in managing the problem (e.g. the use of hunters to hunt the Eurasian Beaver in Norway).

195

See Hayward, M.W. & Somers, M.J. eds. 2009. Reintroduction of Top-order Predators, WileyBlackwell. 196 Ibid.

67

4.2

Recommendations

Evidence from the case studies outlined in this report indicates that reintroduced species and humans can co-exist without conflict. However, this success is only possible if potential problems which might arise from the reintroduction are identified in advance thereby allowing for appropriate management strategies to be put in place. In order to develop appropriate legal and non-legal management strategies for reintroductions of species listed under Annex I and Annex IV(a) of the Birds and Habitats Directives respectively, a series of recommendations (both general and species specific) are presented below. The general recommendations apply to all specially protected species which have been reintroduced or are capable of consideration for reintroduction in Scotland. Specific points relate to the management of the Eurasian Beaver, currently under trial reintroduction in Scotland, and the White-tailed Eagle, which has recently been reintroduced. 4.2.1 General recommendations The findings of the legal review and the case studies form the basis of the general recommendations outlined below. These recommendations are applicable to any future reintroductions in Scotland of species listed under Annex I and Annex IV(a) of the Birds and Habitats Directives respectively. General Recommendation No. 1 - Consultation 1) An initial consultation of ecological and conservation experts is essential to ensure the proposed reintroduction is not only ecologically feasible but will also contribute to the favourable conservation status of the species in question.197 2) Additionally, and of equal importance to the ecological study, is the consultation of members of the public, especially those stakeholders who may be impacted (both positively and negatively) by the reintroduction. Both of these consultations are required under Article 22 of the Habitats Directive which provides that Member States shall: study the desirability of re-introducing species in Annex IV that are native to their territory where this might contribute to their conservation, provided that an investigation, also taking into account experience in other Member States or elsewhere, has established that such re-introduction contributes effectively to re-establishing these species at a favourable conservation status and that it takes place only after proper consultation of the public concerned.



This report recommends that consultation of the ‘public concerned’ should be part of the process of investigating and designing any reintroduction from the earliest opportunity.



The ‘public concerned’ should be defined as widely as possible, but should particularly include land users, landowners and managers. These stakeholders should be engaged in the process of designing the reintroduction from the earliest opportunity.



There will undoubtedly be concerns within communities about proposed reintroductions as communities will lack prior knowledge of living with and managing the species concerned. The consultation process should, therefore, aim to identify

197

This would be in line with the IUCN Guidelines for Reintroductions (IUCN Guidelines, 1998) and with Article 22 of the Habitats Directive.

68

these concerns and subsequently engage concerned members of the public in the planning of the reintroduction project. 

Through dialogue with concerned members of the public the organisation responsible for the reintroduction should investigate how the reintroduction plan can be modified, and potential management strategies developed, to allay the concerns of stakeholders. This will only succeed if stakeholders engage in the process in a constructive and meaningful manner.



Where there is little or no available evidence of the size of a potential impact from the reintroduction of a species, then an adaptive management strategy should be implemented with a mutually agreeable monitoring protocol informing the choice of mutually agreed management options. Scotland already has some experience of monitoring the effects of a reintroduced species in relation to a concern from land users. Studies of reintroduced White-tailed Eagle predation of lambs were published in 2001198 and 2010;199 however, in contrast to what is being recommended in this report, neither of these bodies of research were proactive pieces of research resulting from consultation with land users. They were both reactive reports commissioned many years after the reintroduction in response to long held land user concerns. However, it should be noted that the west coast White-tailed Eagle reintroduction began in the 1970s, before the publication of the IUCN Reintroduction Guidelines. A far more proactive approach has been undertaken for the more recent east coast White-tailed Eagle reintroduction project which has been running over the last few years.



Additionally if robust evidence is available which suggests that the concerns of members of the public are not well founded then this should be presented in an easily accessible format before the reintroduction begins in order to avoid misplaced animosity towards the species concerned.



Consulting stakeholders during the formation of reintroduction plans may also indentify areas of mutual benefit, for example tourism opportunities, as well as identify areas where land users can directly contribute to the project, such as monitoring programmes, and the reintroduction plan can therefore be amended to maximise these benefits.

The above approach of engaging ‘the public concerned’ to identify potential future benefits as well as to address potential future problems is analogous to a Horizon Scanning approach.200 Although limited in number, our case studies showed the involvement of land user groups in species management contributed to increased support for the species within that land user group; for example, beavers and hunters in Norway or reintroduced lynx and hunters in Harz National Park, Germany.

198

Marquiss, M., Madders, M., Irvine, J. & Carss, D. 2001. The impact of White-tailed Eagles on Sheep Farming on Mull, Scottish Natural Heritage Commissioned Report. 199 Simms, I. C., Ormston, C.M., Somerwill, K. E., Cairns C.L., Tobin, F.R., Judge. J. & Tomlinson, A. 2010. A pilot study into sea eagle predation on lambs in the Gairloch area - Final Report. Scottish Natural Heritage Commissioned Report No.370. 200 Sutherland, W.J. & Woodroof, H.J. 2009. The need for environmental horizon scanning. Trends in Ecology and Evolution, 24, 523.

69

General Recommendation No. 2 - Monitoring Monitoring is a central component of the Habitats Directive and Member States are required to: 1) undertake surveillance of the conservation status of priority species;201 2) establish a system to monitor incidental capture and killing of species listed under Annex IV(a);202 and 3) undertake scientific research in order to meet the objectives of Article 2 (conservation of biodiversity while taking account of economic, social and cultural requirements and regional and local characteristics) and Article 11.203 

Given the requirements set out in the Habitats Directive, future Scottish reintroductions of animals listed under Annex IV(a) of the Habitats Directive should have a detailed monitoring programme in place prior to the start of the reintroduction. This monitoring programme should be capable of providing biological information pertinent to assessing the conservation status of the species as well as information on the rate of incidental capture and killing.



As a result of the recommended consultation (General Recommendation No.1) specific research projects may be established to identify the impacts of the reintroduced species on a specific area of concern. If the results of this research support the concerns of the stakeholders then management strategies should be modified accordingly as part of an adaptive management strategy.



A detailed monitoring programme is also essential for the approval of derogations from the Birds or Habitats Directives. The Commission will only approve derogations if “no satisfactory alternatives are available” and the “derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range”.204



In practice this means that an effective monitoring programme must be in place from which the conservation status of the species can be demonstrated and the likely impact of any proposed derogation on that species can be determined.

General Recommendation No. 3 - Species Working Groups 

As the populations of reintroduced species expand the concerns members of the public may have are likely to change. In order to react swiftly and appropriately to these new, emerging concerns this report recommends the formation of species specific working groups of relevant stakeholders. Modelled on the National Species Reintroduction Forum these working groups will provide a focal point for debate and discussion surrounding the reintroduced species and will be involved in the development of the adaptive, species specific management plans discussed below.

201

Habitats Directive, Article 11. Habitats Directive, Article 12. 203 Under Habitats Directive Article 18(1) Member States ‘shall encourage the necessary research and scientific work having regard to the objectives set out in Article 2 and the obligation referred to in Article 11. They shall exchange information for the purposes of proper coordination of research carried out at Member State and at Community level.’ 204 Article 9 of the Birds Directive and Article 16 of the Habitats Directive. 202

70

General Recommendation No. 4 – Species Specific Management Plans 

A species-specific approach to the special protection set out in the Habitats and Birds Directives is essential.



Scottish Natural Heritage should ensure species specific management plans are produced for reintroduced species or planned reintroduced species.



A Species Management Plan which addresses the specific needs of the species, any threats to that species or problems raised by that species is essential to avoid problems with derogations.



The Species Management Plan should also address the issue of determination of favourable conservation status in relation to the particular species.

General Recommendation No. 5 – Resort to Derogations 

The fact that a species has been the subject of a reintroduction does not preclude the use of the formal derogation procedure for that species in order to address human concerns such as damage to property including livestock, crops or forestry. In fact, the review of the experience of other European countries suggests that resort to derogations for some species can be a necessary part of the management strategy for the species, e.g. the Eurasian Beaver in Bavaria in Germany.



The strict conditions for derogations under Article 16 of the Habitats Directive must be met otherwise the UK may face enforcement proceedings by the European Commission as illustrated by the Finnish wolves case and the more recent action over Grey Wolf hunting in Sweden. However, this may lead to more conflict.



Any plans to derogate from the protection of reintroduced specially protected species must therefore be carefully considered in the light of Article 16 of the Habitats Directive, Article 9 of the Birds Directive, the European Commission Guidance published in 2007 and the case law of the European Court of Justice.



Effective monitoring of reintroduced species (in line with General Recommendation No.2 above) is essential to enable SNH to determine the likely impact of any proposed derogation on the favourable conservation status of species.

4.2.2 Species-Specific recommendations 4.2.2.1

White-tailed Eagle

A management strategy for the White-tailed Eagle should address the issues set out in the general recommendations above in relation to consultation, monitoring and management. Effective consultation with the public and the sharing of information on the impacts of Whitetailed Eagles is essential in order to address the concerns of stakeholders and to ensure the effective protection of the species. Some illegal killing of White-tailed Eagles has occurred in both Norway and Ireland and stakeholders developed an aggressive campaign against a possible reintroduction of White-tailed Eagles into south east England.205 Continued 205

See, for example, ‘The war of the Sea Eagles’, Guardian News, 21 March 2010. Available from the Guardian News website at www.guardian.co.uk/environment/2010/mar/21/sea-eagles. Last accessed 23 March 2012.

71

monitoring of the species is important as it should not only facilitate a better scientific understanding of the species but also allow Scottish Natural Heritage to have a reasonable appreciation of the possible impacts on human activities. In particular, research should highlight any changes in predation patterns. Given that derogations from the special protection afforded under the Birds Directive Article 5 are only permissible where there is no other satisfactory solution, derogations for bird species such as the White-tailed Eagle and Red Kite, are unlikely to be an appropriate response to most of the land management concerns raised in this research. Alternative strategies to address impacts on livestock farming and on forestry should be explored in the first instance and might include compensation for loss of livestock, support for changes to lambing practices and the agreement of exclusion zones around nest sites. It is conceivable that there may be exceptional circumstances where the grounds for derogation might need to be considered in relation to significant developments in the public interest, such as windfarms or quarries. This is a complex issue which would have to be considered in the light of the regulatory frameworks for these developments and national and local policy objectives. 4.2.2.2

Eurasian Beaver

Experience from across Europe suggests that reintroducing the beaver to Scotland will bring significant biodiversity benefits and has the potential to provide wider socio-economic benefits, for example through the stimulation of eco-tourism. However, European experience also demonstrates that it is likely the beaver will impact on human activities, albeit on intermittent and localised basis. The nature of these impacts will vary depending on the population size and, consequently, this report makes recommendations for both short-term post-release management, as well as, longer term population management. Short-term Recommendations After release the population will remain relatively small with a low population density. Despite this, the beavers will still have the potential to cause intermittent and localised problems, such as those outlined in the case studies, e.g. flooding, crop damage, tree mortality, damage to water engineering works. In many cases it may be possible to resolve the issue by discussion and agreement or by the provision of specialist advice, with no positive intervention in the management of the species being required. However, in situations where intervention is required then the following hierarchy of responses is recommended – ranging from non-destructive actions short of derogation to actions requiring derogation:

72

The non-destructive actions short of derogation that are suggested here are used extensively across Europe and have been shown to be effective. However, in some situations these may be impractical and therefore more direct action is needed. In Germany a narrow approach has been taken to the protection of ‘breeding and resting places’, permitting the removal of an unoccupied, non-natal dam (i.e. a dam which does not contain a lodge and is not necessary to provide access to a lodge). In the absence of guidance from the European Commission or case law from the ECJ on this point, the legal status of this approach is not certain and further research will need to be undertaken on this issue. All other direct actions listed here (scaring devices, removal of dams associated with a lodge, translocation and killing) will require a derogation and must, therefore, be carefully considered against the tests for a derogation discussed in section 3.1.4 of this report. A hierarchy of responses with derogation as a last resort are suggested here as the Commission requires evidence to be provided that no satisfactory alternative is available before it accepts derogation. Derogation may be needed where the preventative actions (e.g. fencing) do not work or where a beaver is putting key infrastructure at risk, for example a sewage plant. During the earlier stages of release the population will have a restricted geographic range and will occur at a low population density. This will provide favourable conditions for translocation of problem individuals to areas of suitable habitat where they will cause less interference with human activities and therefore the killing of individual problem beavers is unlikely to be necessary during this time. Indeed, the Bavarian beaver reintroduction did not resort to killing of problem beavers until thirty years after the start of the reintroduction (although, it must be noted that the Bavarians enjoyed the flexibility to translocate problem beavers elsewhere in Europe for a considerable period of time. This is no longer the case as most countries now have sufficient beaver numbers). Long-term Recommendations If the beaver were to be formally reintroduced to Scotland it is likely that eventually the population would occur over a large geographic area at a high population density, relative to the carrying capacity of the area, with few additional territories available. As discussed previously it is inevitable that, in some localised occurrences, beavers will interfere with human activities; as has occurred widely across Europe. While the population is small one action of last resort for problem beavers might be to translocate problem individuals.

73

However, the practicality of this option will be reduced as fewer territories become available to translocate individuals to, or the distances involved in translocation become impractical. This situation was reached in Bavaria in the 1990s. There could also be other reasons why translocation may not be judged appropriate. In such circumstances it is possible that the killing of beavers may become the most practical and cost-effective management option. In Bavaria the killing of beavers under derogation has become routine. Although this is not in line with the strict interpretation of the Habitats Directive, as highlighted by the European Commission’s composite reporting on the use of derogations, Germany has not been challenged and is, perhaps, unlikely to be challenged considering the favourable conservation status of the species in Germany. Any action on the part of the European Commission to challenge the use of derogations relating to the beaver would seem like over-enforcement in that light and not in line with the European Commission’s policy of taking a pragmatic, flexible, species by species approach to protected species.206 The framework for species protection under the Habitats Directive must be pragmatic, flexible and species specific. Where the population of the species is clearly within favourable conservation status, management strategies which require derogation are permissible provided there is no satisfactory alternative and the means of and grounds for derogation fall within the requirements of the legislation. Germany has a clear, centrally administered but locally delivered management strategy for addressing the problems arising from having an expanding, healthy beaver population. It is conceivable that there may be circumstances in the future where the killing of beavers in significant numbers may be necessary and can be justified as part of a beaver management strategy for Scotland. It is also possible, as a long-term strategy, perhaps not for Scotland but for the wider EU, that consideration should be given to amending the status of the beaver as an Annex IV(a) protected species. Article 19 of the Habitats Directive contains the mechanism for the alteration of Annex IV where such amendments are necessary due to technical and scientific progress. It requires a unanimous vote by the European Council as a result of a proposal from the Commission.207 Implementation of Management Options The implementation of the management options described above requires a balanced management strategy that takes account of both the conservation requirements of the beaver and the needs of land users. The Bavarian management plan appears to strike a balance between these two needs and it is recommended that this strategy be carefully considered if the beaver is to be reintroduced to Scotland. The benefits of the Bavarian Plan include the following: 

The use of local, volunteer beaver consultants is not only cost-effective but also allows local knowledge to be used to provide the most appropriate solution to a problem beaver.



The use of local beaver consultants encourages local ownership of beaver populations and increases community support for the presence of beavers.

206

See discussion in Section 3.1.4 above relating to the European Commission Guidance 2007. A number of countries have exceptions inserted into the annexes for particular species. For example see, Directive 97/62/EC of 27 October 1997 adapting to technical and scientific progress Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora, which inserts exceptions into Annex 2 of the Habitats Directive for Finland and Sweden. This suggests that there is some limited scope for alteration in the annexes. 207

74



As local beaver consultants are fully trained and supported by full-time beaver consultants they contribute to the monitoring process required by the Habitats Directive and are able to make informed decisions about the most appropriate management strategies. Often advising the use of effective non-lethal methods instead of quickly resorting to lethal methods; therefore, reducing the need for derogations.



The use of a large number of local volunteer beaver consultants allows for a quick response to concerns land users may have. The presence of trained local consultants provides reassurance to local land users.



The system provides a clear, locally accessible, transparent and immediate process for dealing with problems.

Although the Bavarian management system has many benefits it is open for criticism as being overly bureaucratic and expensive. In addition to the expenses of the 200 volunteer beaver consultants and the two full time beaver consultants the cost of mitigation measures, e.g. beaver fencing, is also born by the government. This report does not recommend adoption like-for-like of the Bavarian management approach. This would be in contradiction to General Recommendation No.1 (above) which would suggest that a management strategy should only be adopted after careful consultation with experts and members of the public. However, the key features of the Bavarian approach which are considered particularly beneficial should be considered in the design of the Scottish management strategy for the species.

75

5

CONCLUSION

One of the central objectives of this research was to inform strategies for dealing with conflicts between reintroduced species and land management activities. The research has shown that there is considerable experience of addressing these concerns in other European countries and that management strategies are available, including as a last resort derogation from the special protection of species, which can effectively address the concerns of landowners and managers and avoid detrimental impacts on the species concerned. Evidence from the case studies outlined in this report indicates that reintroduced species and humans can co-exist without conflict provided effective management strategies are put in place which anticipate and address concerns.

76

6

REFERENCES

6.1

International and European Union Law

Convention on the Conservation of European Wildlife and Natural Habitats (1979) (Bern Convention). Council Directive 2009/147/EC of 30 November 2009 on the conservation of wild birds (codified version) (The Birds Directive). Council Directive 97/62/EC of 27 October 1997 adapting to technical and scientific progress Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora. Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (The Habitats Directive). Council of Europe Committee of Ministers, Recommendation Number R (85) 15 1985 of the Council of Europe Committee of Ministers to Member States on the reintroduction of species 1985. European Commission, Composite European Report on Derogations in 2007-2008 According to Article 16 of Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora (The Habitats Directive) 2011. European Commission, Composite European Report on Derogations in 2003-2004 According to Article 16 of Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora (The Habitats Directive) 2007. European Commission, Our life insurance, our natural capital: EU Biodiversity Strategy to 2020, COM 2011 244 final. Guidance document on the strict protection of animal species of Community interest under the Habitats Directive 92/43/EEC, Environment Directorate-General of the European Commission, February 2007. IUCN. 1998. Guidelines for Reintroductions. Prepared by the IUCN/SSC Reintroduction Specialist Group, IUCN, Gland, Switzerland and Cambridge, UK. United Nations Convention on Biological Diversity 1992. 6.2

Case Studies: Law and Policy

6.2.1 Ireland Law European Communities (Birds and Natural Habitats) (Control of Recreational Activities) Regulations 2010 S.I. No. 293/2010. European Communities (Birds and Natural Habitats) Regulations 2011 S.I. No. 477/2011. European Communities (Natural Habitats) (Amendment) Regulations 2005 S.I. No. 378/2005.

77

European Communities (Natural Habitats) (Amendment) Regulations 1998 S.I. No. 233/1998. European Communities (Natural Habitats) Regulations 1997 S.I. No. 94/1997. European Communities (Birds and Natural Habitats) (Restrictions on use of Poisoned Bait) Regulations 2010 S.I. No. 481/2010. Wildlife (Amendment) Act 2010 (Act No. 19 of 2010). Wildlife (Amendment) Act 2000 (Act No. 38 of 2000). Wildlife Act 1976 (Act No. 39 of 1976). Policy ‘Minister Deenihan Launches Second National Biodiversity Plan’, The Department of Arts, Heritage and the Gaeltacht Press release 09 November 2011. (Available at http://www.ahg.gov.ie/en/PressReleases/2011/November2011PressReleases/htmltext,1623 7,en.html. Last accessed 23 March 2012.) National Biodiversity Action Plan 2011-2016. (Available at http://www.ahg.gov.ie/en/. Last accessed 23 March 2012.) 6.2.2 Sweden Law Swedish Environmental Code 1998. Species Protection Ordinance 2007:845. Policy A Rich Diversity of Plant and Animal Life (Available at http://www.miljomal.se/-Global-meny/In-English/. Last accessed 23 March 2012.) The Swedish Government Inquiries, Report of the Inquiry on the Environmental Objectives System, to the Minister for the Environment 2009. (Available at http://www.sweden.gov.se/content/1/c6/13/55/25/8ae6a419.pdf. Last accessed 23 March 2012.) 6.2.3 Latvia Law Hunting Act (107 (2872), 23 July 2003). Hunting Regulations (183 (2948), 30 December 2003). Policy National Programme on Biological Diversity, Approved by the Cabinet of Ministers on 1 February 2000. (Available at http://www.varam.gov.lv/eng/dokumenti/politikas_planosanas_dokumenti/?doc=3304. Last accessed 23 March 2012.)

78

6.2.4 Netherlands Law Flora and Fauna Act 1998 (Act of 25 May 1998, containing rules for the protection of wild plant and animal species (Flora and Fauna)). Hunting Regulations (§ 1. Hunting Acts, falconer deeds and deeds decoy). The Nature Conservation Act 1998 (25 May 1998). Policy Biodiversity Works For Nature For People Forever, July 2008 (Available at http://english.minlnv.nl/. Last accessed 23 March 2012.) The Habitat-Based Approach: A New Species Policy September 2007 (Available at http://english.minlnv.nl/. Last accessed 23 March 2012.) Nature For People, People For Nature July 2000 (Available at http://english.minlnv.nl/. Last accessed 23 March 2012.) 6.2.5 Germany Law Bavaria Nature Protection Law (Law over the protection of nature, the care of the landscape and the recovery in free nature (Bavarian nature protection law – BayNatSchG)) 1 March 2011) Law on nature protection and landscape conservation (Federal Nature Conservation Act) 29 July 2009 (BNatSchG). Nature Conservation Act of Saxony-Anhalt (LSA NatSchG) 10 December 2010. Regulation on the permission of exceptions of the protection regulations for particularly protected animal and plant types (Protection of species-legal exception regulation - AAV) 3 June 2008. Policy Implementation Act of Lower Saxony to the Federal Nature Conservation Act (NAGBNatSchG) 19 February 2010. National Strategy on Biodiversity (Available in German at http://www.bmu.de/. Last accessed 23 March 2012.) 6.2.6 Norway Law Forestry Act. Nature Diversity Act (Act No. 100 of 19 June 2009 Relating to the Management of Biological, Geological and Landscape Diversity). The Nature Conservation Act (Act No. 63 of 19 June 1970 Relating to Nature Conservation).

79

Wildlife Act (Act No. 38 of 29 May 1981 Relating to wildlife and wildlife habitats). Policy Report No. 26 to the Storting (2006-2007) The Government’s Environmental Policy and the State of the Environment in Norway (Available with excerpts in English at http://www.regjeringen.no/. Last accessed 23 March 2012.) Report No. 24 to the Storting (2000-2001) The Government's Environmental Policy and the State of the Environment. (Available with excerpts in English at http://www.regjeringen.no/. Last accessed 23 March 2012.) Report No. 21 to the Storting (2004-2005) The Government’s Environmental Policy and the State of the Environment in Norway (Available with excerpts in English at http://www.regjeringen.no/. Last accessed 23 March 2012.) 6.3

General References

Conservation (Natural Habitats etc) Amendment (Scotland) Regulations 2001 (SSI 2007/80). Conservation (Natural Habitats etc) Amendment (No.2) (Scotland) Regulations 2007 (SSI 2007/349). Conservation (Natural Habitats etc) Amendment (No.2) (Scotland) Regulations 2008 (SSI 2008/425). Conservation (Natural Habitats etc) Amendment (Scotland) Regulations 2011 (SSI 2011/155). Conservation (Natural Habitats &.) Regulations SI 1994/2716. The Conservation of Habitats and Species Regulations 2010 SI 2010/490. Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007 (SI 2007/1842). Arts, K., Fischer, A., and Van der Wal, R. 2012. Common stories of reintroduction: A discourse analysis of documents supporting animal reintroductions to Scotland. LUP, in press. C.T. Reid. 2009. Nature Conservation Law, 3rd Edition, W Green. Document DocHab-04-03/03 rev.3 ‘Assessment, monitoring and reporting of conservation status – preparing the 2001-2007 report under Article 17 of the Habitats Directive’. (Available at http://forum.europa.eu.int/Public/irc/env/monnat/home. Last accessed 23 March 2012.) Europa Press Release ‘Commission urges Sweden to respect nature legislation in protecting endangered wolves’, Brussels, 27 January 2011. (Available at http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/95&format=HTML. Last accessed 23 March 2012.) Halley, D. J. & Rosell, F. 2002. The beaver's reconquest of Eurasia: status, population development and management of a conservation success. Mammal Review, 32, 153.

80

Hayward, M.W. & Somers, M.J., eds. 2009. Reintroduction of Top-order Predators, WileyBlackwell. Hetherington, D., Miller, D., Macleod, C. & Gorman M. 2008. A potential habitat network for Eurasian lynx in Scotland. Mammal Review, 38, 285. Heydon, M.J., Wilson, C.J., & Tew, T. 2010. Wildlife conflict resolution: a review of problems, solutions and regulation in England. Wildlife Research, 37, 721. J. Darpö, Brussels Advocates Swedish Grey Wolves, Swedish Institute for European Policy Studies, European Policy Analysis September Issue 2011. (Available at http://www.sieps.se/en/publikationer/brussels-advocates-swedish-grey-wolves-20118epa. Last accessed 23 March 2012.) Kramm, N., Anderson, R., O’Rourke, E., Emmerson, M., O’Halloran, J. & Chisolm, N. 2010. Farming the Iveragh Uplands: A tale of humans and nature, University College Cork. Linnell, J., Salvatori V. & Boitani, L. 2008. Guidelines for Population Level Management Plans for Large Carnivores, a Large Carnivore Initiative for Europe (LCIE). Report prepared for the European Commission July 2008. Marquiss, M., Madders, M., Irvine, J. & Carss, D. 2001. The impact of White-tailed Eagles on Sheep Farming on Mull. Scottish Natural Heritage Commissioned Report. McLean, I.F.G., Joint Nature Conservation Committee. 2003. A Policy for Conservation Translocations of Species in Britain. (Available at http://jncc.defra.gov.uk/page-2920. Last accessed 23 March 2012.) Morzillo A.T., Mertig A.G., Hollister J.W. & Garner, N.J. 2010. Socioeconomic Factors Affecting Local Support for Black Bear Recovery Strategies. Environmental Management, 45, (6), 1299. Reasoned Opinion addressed to Kingdom of Sweden on account of its failure to fulfil its obligations under Article 12 and 16 of Directive 92/43/EEC on the conservation of natural habitats and of wild flora and fauna under Article 258 of the Treaty on the Functioning of the European Union, Brussels 16 June 2011, 2010/4200, K(2011) 4030 Final Rees, P. A. 2001. Is there a legal obligation to reintroduce animal species into their former habitats? Oryx , 35,(3), 216. Rudfeld, L. 2005. Contribution to the interpretation of the strict protection of species (Habitats Directive Article 12), Article 12 Working Group. 6 April 2005. Simms, I. C., Ormston, C.M., Somerwill, K. E., Cairns C.L., Tobin, F.R., Judge. J. & Tomlinson, A. 2010. A pilot study into sea eagle predation on lambs in the Gairloch area Final Report. Scottish Natural Heritage Commissioned Report No.370. Sutherland, W.J. & Woodroof, H.J. 2009. The need for environmental horizon scanning. Trends in Ecology and Evolution, 24, 523. ‘The war of the Sea Eagles’, Guardian News, 21 March 2010. (Available at www.guardian.co.uk/environment/2010/mar/21/sea-eagles. Last accessed 23 March 2012.)

81

Trouwborst, A. 2010. Managing the Carnivore Comeback: International and EU Species Protection Law and the Return of Lynx, Wolf and Bear to Western Europe. Journal of Environmental Law, 22, (3), 347.

82

Appendix 1. EU reintroductions of species listed in Annex I of the Birds Directive and Annex IV(a) of the Habitats Directive Species 

English Common Name 

Spermophilus citellus  Spermophilus citellus  Spermophilus citellus  Spermophilus citellus  Spermophilus suslicus  Castor fiber  Castor fiber  Castor fiber  Castor fiber  Castor fiber  Castor fiber  Castor fiber  Castor fiber  Castor fiber  Castor fiber  Castor fiber  Castor fiber  Castor fiber  Castor fiber  Castor fiber  Castor fiber  Castor fiber  Castor fiber  Cricetus cricetus  Cricetus cricetus  Cricetus cricetus 

European Ground Squirrel or Suslik  European Ground Squirrel or Suslik  European Ground Squirrel or Suslik  European Ground Squirrel or Suslik  Speckled Ground Squirrel  Eurasian Beaver  Eurasian Beaver  Eurasian Beaver  Eurasian Beaver  Eurasian Beaver  Eurasian Beaver  Eurasian Beaver  Eurasian Beaver  Eurasian Beaver  Eurasian Beaver  Eurasian Beaver  Eurasian Beaver  Eurasian Beaver  Eurasian Beaver  Eurasian Beaver  Eurasian Beaver  Eurasian Beaver  Eurasian Beaver  European Hamster  European Hamster  European Hamster 

Taxa 

Occurs 

Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal 

Czech Republic   Germany  Poland  Slovakia  Poland  Austria  Belgium  Czech Republic   Denmark  Estonia  Finland  France  Germany  Hungary  Latvia  Lithuania  Luxembourg  Netherlands  Poland  Romania  Slovakia  Solvenia  Sweden  Belgium  France  Netherlands 

83

Post Legislation  Reintroduction? 

Derogation of  Reintroduced Pop.  2001‐2008? 

Reference 

Y  Y  Y  Y  Y  N  Y  Y  Y  N  Y  Y  Y  Y  N  N  Y  Y  N  Y  Y  Y  N  Y  Y  Y 

N  N  N  N  N  N  Y  N  N  N  N  Y  Y  Y  N  N  N  Y  N  N  N  N  N  Y  N  N 

1  2  2  1  2  2  2  2  2  2  2  2  2  2  2  2  2  2  2  2  2  2  2  2  2  2 

Ursus arctos  Ursus arctos  Ursus arctos  Lutra lutra  Lutra lutra  Lutra lutra  Lutra lutra  Mustela lutreola  Mustela lutreola  Mustela lutreola  Mustela lutreola  Felis silvestris  Felis silvestris  Lynx lynx  Lynx lynx  Lynx lynx  Lynx lynx  Lynx lynx  Lynx lynx  Lynx pardinus  Cervus elaphus corsicanus  Bison bonasus  Bison bonasus  Bison bonasus  Rupicapra  pyrenaica  ornata  Testudo hermanni  Emys orbicularis  Emys orbicularis  Gallotia simonyi 

Brown Bear  Brown Bear  Brown Bear  Otter  Otter  Otter  Otter  European Mink  European Mink  European Mink  European Mink  European Wildcat  European Wildcat  Lynx  Lynx  Lynx  Lynx  Lynx  Lynx  Iberian Lynx  Corsican Red Deer  European Bison  European Bison  European Bison 

Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal  Mammal 

Austria  France  Italy  Netherlands  Spain  Sweden  UK  Estonia  France  Germany  Spain  Germany  Spain  Austria  Czech Republic   France  Germany  Italy  Slovenia  Spain  France  Poland  Germany  Lithuania 

Y  y  Y  Y  Y  N  Y  Y  Y  Y  Y  N  Y  N  N  Y  Y  N  N  Y  Y  N  Y  N 

N  Y  Y  N  N  N  N  N  N  N  Y  N  Y  N  N  N  N  Y  N  N  N  N  N  N 

Pyrenean Chamois 

Mammal 

Italy 





Spain  Lithuania  Spain  Spain 

Y  Y  Y  Y 

Y  N  N  N 

Hermann's Tortoise  European Pond Turtle  European Pond Turtle  El Herro Giant lizard 

Reptile  Reptile  Reptile  Reptile 

84

2  2  2  2  3  2  2  2  2  2  2  4  4  2  2  2  2  2  2  2  5  2  2  2  2  6  7  7  2 

Lacerta agilis  Coronella austriaca  Natrix tessellata  Vipera ursinii  Triturus marmoratus  Alytes muletensis  Alytes obstetricans  Bombina bombina  Bombina bombina  Bombina bombina  Rana iberica  Rana lessonae  Pelobates fuscus  Pelobates fuscus  Bufo calamita  Bufo calamita  Hyla arborea  Hyla arborea  Hyla arborea  Hyla arborea  Acipenser naccarii  Acipenser sturio  Valencia hispanica  Maculinea arion  Maculinea teleius  Maculinea nausithous  Parnassius apollo  Patella ferruginea  Patella ferruginea  Theodoxus prevostianus 

Sand Lizard  Smooth Snake  Dice Snake  Meadow Viper  Marbled Newt  Mallorcan Midwife Toad  Common Midwife Toad  Fire Bellied Toad  Fire Bellied Toad  Fire Bellied Toad  Iberian Frog  Pool Frog  Common Spadefoot  Common Spadefoot  Natterjack Toad  Natterjack Toad  European Tree Frog  European Tree Frog  European Tree Frog  European Tree Frog  Adriatic Sturgeon  Atlantic Sturgeon  Valencia Toothcarp  Large Blue  Scarce Large Blue  Dusky Large Blue  Apollo Butterfly  Ribbed Mediterranean Limpet  Ribbed Mediterranean Limpet  N/A 

Reptile  Reptile  Reptile  Reptile  Amphibian  Amphibian  Amphibian  Amphibian  Amphibian  Amphibian  Amphibian  Amphibian  Amphibian  Amphibian  Amphibian  Amphibian  Amphibian  Amphibian  Amphibian  Amphibian  Fish  Fish  Fish  Lepidoptera  Lepidoptera  Lepidoptera  Lepidoptera  Mollusca  Mollusca  Mollusca 

85

UK  UK  Germany  Hungary  Spain  Spain  Spain  Germany  Latvia  Sweden  Spain  UK  Italy  Sweden  Estonia  UK  Austria  Germany  Latvia  Sweden  Italy  France  Spain  UK  Netherlands  Netherlands  Czech Republic   France  Spain  Hungary 

Y  Y  Y  Y  N  Y  Y  Y  Y  Y  Y  Y  Y  Y  Y  Y  Y  Y  N  Y  Y  Y  Y  Y  Y  N  Y  Y  Y  Y 

N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N 

2  2  2  7  2  2  2  7  7  2  2  2  7  7  7  7  7  7  7  7  7  7  7  7  7  8  9  10  2  2 

Unio crassus  Ciconia nigra  Ciconia ciconia  Anser erythropus  Tadorna ferruginea  Aythya nyroca  Aythya nyroca  Oxyura leucocephala  Oxyura leucocephala  Pandion haliaetus  Pandion haliaetus  Milvus milvus  Milvus milvus  Milvus milvus  Haliaeetus albicilla  Haliaeetus albicilla  Gypaetus barbatus  Gypaetus barbatus  Gypaetus barbatus  Gyps fulvus  Gyps fulvus  Gyps fulvus  Aegypius monachus  Aegypius monachus  Aegypius monachus  Aquila adalberti  Aquila chrysaetos  Aquila fasciatus  Falco naumanni  Falco naumanni 

Thick‐shelled River Mussel  Black Stork  White Stork  Lesser White‐fronted Goose  Ruddy Shelduck  Ferruginous Duck  Ferruginous Duck  White‐headed Duck  White‐headed Duck  Osprey  Osprey  Red Kite  Red Kite  Red Kite  White‐tailed Eagle  White‐tailed Eagle  Bearded Vulture  Bearded Vulture  Bearded Vulture  Griffon Vulture  Griffon Vulture  Griffon Vulture  Black Vulture  Black Vulture  Black Vulture  Spanish Imperial Eagle  Golden Eagle  Bonelli's Eagle  Lesser Kestrel  Lesser Kestrel 

Mollusca  Birds  Birds  Birds  Birds  Birds  Birds  Birds  Birds  Birds  Birds  Birds  Birds  Birds  Birds  Birds  Birds  Birds  Birds  Birds  Birds  Birds  Birds  Birds  Birds  Birds  Birds  Birds  Birds  Birds 

Sweden  Italy  Netherlands  Sweden  Bulgaria  Italy  Spain  France  Spain  Spain  UK  Ireland  Italy  UK  Ireland  UK  Austria  Italy  Spain  Bulgaria  France  Italy  Bulgaria  France  Spain  Spain  Ireland  France  France  Spain 

86

Y  Y  N  Y  Y  Y  Y  Y  Y  Y  Y  Y  Y  Y  Y  Y  Y  Y  Y  Y  Y  Y  Y  Y  Y  Y  Y  Y  Y  Y 

N  N  N  N  N  N  N  N  Y  Y  N  N  N  N  N  N  N  N  Y  N  N  N  N  N  N  N  N  N  N  Y 

7  11  2  2  2  2  12  2  2  2  2  13  7  2  14  15  2  2  16  7  2  17  7  2  18  2  7  2  7  19 

Falco peregrinus  Falco peregrinus  Falco peregrinus  Tetrao urogallus  Tetrao urogallus  Grus grus  Crex crex  Porphyrio porphyrio  Fulica cristata  Otis tarda  Columba junoniae  Bubo bubo  Pyrrhocorax pyrrhocorax  Fringilla teydea 

Peregrine Falcon  Peregrine Falcon  Peregrine Falcon  Capercaillie  Capercaillie  Common Crane  Corn Crake  Purple Swamphen  Red‐knobbed Coot  Great Bustard  Laurel Pigeon  Eurasian Eagle Owl  Red‐billd Chough  Blue Chaffinch 

Birds  Birds  Birds  Birds  Birds  Birds  Birds  Birds  Birds  Birds  Birds  Birds  Birds  Birds 

Austria  Germany  Poland  France  Germany  UK  UK  Portugal  Spain  UK  Spain  Germany  UK  Spain 

87

Y  Y  Y  Y  Y  Y  Y  Y  Y  Y  Y  Y  Y  Y 

N  N  N  N  N  N  N  N  Y  N  Y  N  N  N 

20  21  20  22  22  23  24  25  7  2  2  26  27  7 

Appendix 2. Results of the investigation of the reintroduction of selected species* in Non-EU European countries *Eurasian Beaver, Eurasian Lynx, Grey Wolf, Brown Bear, White- tailed Eagle and Red Kite Species  Castor fiber  Castor fiber  Castor fiber  Castor fiber  Castor fiber  Castor fiber  Ursus arctos  Ursus arctos  Ursus arctos  Ursus arctos  Ursus arctos  Ursus arctos  Ursus arctos  Ursus arctos  Ursus arctos  Ursus arctos  Ursus arctos  Lynx lynx  Lynx lynx  Lynx lynx  Lynx lynx  Lynx lynx  Lynx lynx  Lynx lynx  Lynx lynx 

English Common Name 

Country 

Reintroduced? 

Existing Scottish  Reintroduction? 

Eurasian Beaver  Eurasian Beaver  Eurasian Beaver  Eurasian Beaver  Eurasian Beaver  Eurasian Beaver  Brown Bear  Brown Bear  Brown Bear  Brown Bear  Brown Bear  Brown Bear  Brown Bear  Brown Bear  Brown Bear  Brown Bear  Brown Bear  Eurasian Lynx  Eurasian Lynx  Eurasian Lynx  Eurasian Lynx  Eurasian Lynx  Eurasian Lynx  Eurasian Lynx  Eurasian Lynx 

Belarus  Norway  Russia  Serbia  Switzerland  Ukraine  Albania  Belarus  Bosnia  Croatia  Macedonia  Montenegro  Norway  Russia  Serbia  Turkey  Ukraine  Albania  Belarus  Bosnia  Croatia  Norway  Russia  Serbia  Switzerland 

N  N  N  Y  Y  Y  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  Y 

N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N 

88

Lynx lynx  Milvus Milvus  Canis lupus  Canis lupus  Canis lupus  Canis lupus  Canis lupus  Canis lupus  Canis lupus  Canis lupus  Canis lupus  Canis lupus  Canis lupus  Canis lupus  Haliaeetus albicilla  Haliaeetus albicilla  Haliaeetus albicilla  Haliaeetus albicilla  Haliaeetus albicilla  Haliaeetus albicilla 

Eurasian Lynx  Red Kite  Wolf  Wolf  Wolf  Wolf  Wolf  Wolf  Wolf  Wolf  Wolf  Wolf  Wolf  Wolf  White‐tailed Eagle  White‐tailed Eagle  White‐tailed Eagle  White‐tailed Eagle  White‐tailed Eagle  White‐tailed Eagle 

Turkey  Switzerland  Albania  Belarus  Bosnia  Croatia  Macedonia  Montenegro  Norway  Russia  Serbia  Switzerland  Ukraine  Turkey  Belarus  Moldova  Norway  Russia  Turkey  Ukraine 

N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N  N 

89

N  Y  N  N  N  N  N  N  N  N  N  N  N  N  Y  Y  Y  Y  Y  Y 

Appendix 3. Derogations for selected species* *Eurasian Beaver, Eurasian Lynx, Grey Wolf, Brown Bear, White- tailed Eagle and Red Kite English Name 

Country of  Derogation 

Year of  No.  Derogation  Derogations 

No.  Individuals 

Reason 

Actions 

Derogation  for  Reintrodcued  Population? 

Brown Bear 

Bulgaria 

2007/08 





Research 

capture and GPS collar 



Brown Bear 

Bulgaria 

2007/08 

11 



public safety, prevention of serious damage 

kill 



Brown Bear 

Estonia 

2004 

30 

12 

in the interest of public safety 

kill 



Brown Bear 

Estonia 

2005 



23 

public safety, prevention of serious damage 

kill 



Brown Bear 

Estonia 

2006 



20 

public safety, prevention of serious damage 

kill 



Brown Bear 

Finland 

2001 

90 

101 

in the interest of public safety 

kill 



Brown Bear 

Finland 

2002 

75 

96 

in the interest of public safety 

kill 



Brown Bear 

Finland 

2003 

94 

71 

in the interest of public safety 

kill 



Brown Bear 

Finland 

2004 

138 

74 

in the interest of public safety 

kill 



Brown Bear 

Finland 

2006 

unspecified 

78 

unspecified 

kill 



Brown Bear 

Finland 

2007 

unspecified 

89 

public safety, prevention of serious damage 

kill 



Brown Bear 

Finland 

2008 

unspecified 

90 

public safety, prevention of serious damage 

kill 



Brown Bear 

Finland 

2005` 

unspecified 

72 

unspecified 

kill 



Brown Bear 

France 

2001 



unspecified 

education, safety 

unspecified 



Brown Bear 

France 

2002 



unspecified 

education, safety 

unspecified 



Brown Bear 

France 

2004 



unspecified 

research, education 

transport 



Brown Bear 

Greece 

2001 



unspecified 

unspecified 

capture, keep in captivity 



Brown Bear 

Greece 

2002 



unspecified 

unspecified 

capture, keep in captivity 



Brown Bear 

Italy 

2002 



unspecified 

research  

capture 



Brown Bear 

Italy 

2005 

unspecified 

11 

research 

radio‐collar 



Brown Bear 

Italy 

2007/08 

unspecified 

unspecified 

in the interest of public safety, research 

kill, bring into captivity 



Brown Bear 

Lithuania 

2004 



unspecified 

unspecified 

unspecified 



Brown Bear 

Romania 

2007/08 

unspecified 

unspecified 

unspecified 

unspecified 



Brown Bear 

Slovakia 

2004 

81 

unspecified 

unspecified 

unspecified 



90

Brown Bear 

Slovakia 

2007 

87 

25 

public safety, prevention of serious damage 

kill 



Brown Bear 

Slovakia 

2008 

58 

31 

public safety, prevention of serious damage 

kill 



Brown Bear 

Slovakia 

2005/06 

unspecified 

148 

public safety, prevention of serious damage 

kill 



Brown Bear 

Slovenia 

2005 

unspecified 

91 

in the interest of public safety 

kill 



Brown Bear 

Slovenia 

2006 

unspecified 

126 

in the interest of public safety 

kill 



Brown Bear 

Slovenia 

2007/08 

28 

163 

public safety, prevention of serious damage 

kill 



Brown Bear 

Spain 

2001 



unspecified 

unspecified 

keeping in captivity 



Brown Bear 

Spain 

2002 



unspecified 

unspecified 

keeping in captivity 



Brown Bear 

Spain 

2003 



unspecified 

research 

unspecified 



Brown Bear 

Spain 

2004 



unspecified 

research 

unspecified 



Brown Bear 

Sweden 

2001 



57 

in the interest of public safety 

kill 



Brown Bear 

Sweden 

2002 



62 

in the interest of public safety 

kill 



Brown Bear 

Sweden 

2003 

74 

unspecified 

in the interest of public safety 

kill 



Brown Bear 

Sweden 

2004 

101 

unspecified 

in the interest of public safety 

kill 



Brown Bear 

Sweden 

2005 

unspecified 

115 

public safety, prevention of serious damage 

kill 



Brown Bear 

Sweden 

2007 



unspecified 

public safety, prevention of serious damage 

kill 



Brown Bear 

Sweden 

2008 

15 

unspecified 

public safety, prevention of serious damage 

kill 



Eurasian Beaver 

Belgium 

2001 

151 

unspecified 

research, education, reintroduction 

transport 



Eurasian Beaver 

Belgium 

2002 





research, education, reintroduction 

transport 



Eurasian Beaver 

Belgium 

2004 





research, education, reintroduction 

kill 



Eurasian Beaver 

2005/06 



unspecified 

unspecified 

deliberate disturbance 



2005/06 



unspecified 

unspecified 

deliberate disturbance 



2007/08 

31 

unspecified 

unspecified 

unspecified 



Eurasian Beaver 

Belgium  Czech  Republic  Czech  Republic  France 

2004 



unspecified 

research, education, reintroduction 

transport 



Eurasian Beaver 

France 

2005 



unspecified 

research, education, reintroduction 

capture 



Eurasian Beaver 

Germany 

2001 





research, education, reintroduction 

capture 



Eurasian Beaver 

Germany 

2001 





research, education, reintroduction 

deliberate disturbance 



Eurasian Beaver 

Germany 

2003 

13 

16 

in the interest of public safety 

capture 



Eurasian Beaver 

Germany 

2003 



unspecified 

research, education, reintroduction 

capture 



Eurasian Beaver  Eurasian Beaver 

91

Eurasian Beaver 

Germany 

2003 

21 

44 

to prevent serious damage 

capture 



Eurasian Beaver 

Germany 

2003 

18 



in the interest of public safety 

deliberate disturbance 



Eurasian Beaver 

Germany 

2003 



unspecified 

research, education, reintroduction 

deliberate disturbance 



Eurasian Beaver 

Germany 

2003 

40 

unspecified 

to prevent serious damage 

deliberate disturbance 



Eurasian Beaver 

Germany 

2003 



unspecified 

in the interest of public safety 

destruction of breeding/resting sites 



Eurasian Beaver 

Germany 

2003 

46 

unspecified 

to prevent serious damage 

destruction of breeding/resting sites 



Eurasian Beaver 

Germany 

2003 



unspecified 

research, education, reintroduction 

keeping in captivity 



Eurasian Beaver 

Germany 

2003 





in the interest of public safety 

kill 



Eurasian Beaver 

Germany 

2003 





research, education, reintroduction 

kill 



Eurasian Beaver 

Germany 

2003 

52 

77 

to prevent serious damage 

kill 



Eurasian Beaver 

Germany 

2003 





in the interest of public safety 

transport 



Eurasian Beaver 

Germany 

2004 

31 

60 

in the interest of public safety 

capture 



Eurasian Beaver 

Germany 

2004 

33 

60 

prevention of serious damage to livestock 

capture 



Eurasian Beaver 

Germany 

2004 



38 

research, education, reintroduction 

capture 



Eurasian Beaver 

Germany 

2004 

26 



in the interest of public safety 

deliberate disturbance 



Eurasian Beaver 

Germany 

2004 

55 

unspecified 

prevention of serious damage to livestock 

deliberate disturbance 



Eurasian Beaver 

Germany 

2004 



unspecified 

research, education, reintroduction 

deliberate disturbance 



Eurasian Beaver 

Germany 

2004 



unspecified 

flora and/or fauna conservation 

destruction of breeding/resting sites 



Eurasian Beaver 

Germany 

2004 



unspecified 

in the interest of public safety 

destruction of breeding/resting sites 



Eurasian Beaver 

Germany 

2004 

12 

unspecified 

prevention of serious damage to livestock 

destruction of breeding/resting sites 



Eurasian Beaver 

Germany 

2004 

14 

unspecified 

research, education, reintroduction 

keeping in captivity 



Eurasian Beaver 

Germany 

2004 



unspecified 

in the interest of public safety 

kill 



Eurasian Beaver 

Germany 

2004 



127 

prevention of serious damage to livestock 

kill 



Eurasian Beaver 

Germany 

2004 





research, education, reintroduction 

kill 



Eurasian Beaver 

Germany 

2004 





research, education, reintroduction 

unspecified 



Eurasian Beaver 

Germany 

2005 

91 

unspecified 

prevention of serious damage to livestock 

unspecified 



Eurasian Beaver 

Germany 

2006 

110 

unspecified 

prevention of serious damage to livestock 

unspecified  capture,  kill,  destruction  keeping in captivity 

Eurasian Beaver 

Germany 

2007/08 

unspecified 

unspecified 

unspecified 

Eurasian Beaver 

Hungary 

2004 





research, education, reintroduction 

92

Y  disturbance, 

Y  Y 

Eurasian Beaver 

Hungary 

2004 



20 

research, education, reintroduction 

transport 



Eurasian Beaver 

Hungary 

2005 



unspecified 

research, education, reintroduction 

unspecified 



Eurasian Beaver 

Hungary 

2006 



unspecified 

research, education, reintroduction 

unspecified 



Eurasian Beaver 

Hungary 

2007/08 



unspecified 

reintroduction 

unspecified 



Eurasian Beaver 

Luxembourg 

2007/08 





unspecified 

capture and release 



Eurasian Beaver 

Netherlands 

2003 





research, education, reintroduction 

unspecified 



Eurasian Beaver 

Netherlands 

2007/08 

unspecified 

unspecified 

unspecified 

unspecified 



Eurasian Beaver 

Slovakia 

2005/06 

unspecified 

unspecified 

unspecified 

unspecified 



Eurasian Beaver 

Slovakia 

2007/08 

unspecified 

unspecified 

flora and/or fauna conservation 

unspecified 



Eurasian Beaver 

Spain 

2007/08 



unspecified 

unspecified 

kill 



Eurasian Lynx 

Belgium 

2001/02 

unspecified 

unspecified 

research, education 

transport 



Eurasian Lynx 

Finland 

2001 

155 

58 

public safety, prevention of serious damage 

kill 



Eurasian Lynx 

Finland 

2002 

48 

38 

public safety, prevention of serious damage 

kill 



Eurasian Lynx 

Finland 

2003 

115 

52 

prevention of serious damage 

kill 



Eurasian Lynx 

Finland 

2004 

176 

67 

prevention of serious damage 

kill 



Eurasian Lynx 

Finland 

2005 

97 

85 

prevention of serious damage 

kill 



Eurasian Lynx 

Finland 

2006 

98 

82 

prevention of serious damage 

kill 



Eurasian Lynx 

Finland 

2007 

137 

119 

public safety, prevention of serious damage 

kill 



Eurasian Lynx 

Finland 

2008 

235 

185 

public safety, prevention of serious damage 

kill 



Eurasian Lynx 

France 

2001/02 



unspecified 

prevention of serious damage 

kill 



Eurasian Lynx 

Italy 

2007/08 

unspecified 

unspecified 

reintroduction 

capture 



Eurasian Lynx 

Latvia 

2005 

unspecified 

74 

prevention of serious damage 

kill 



Eurasian Lynx 

Latvia 

2006 

unspecified 

38 

prevention of serious damage 

kill 



Eurasian Lynx 

Latvia 

2007 

unspecified 

107 

public safety, prevention of serious damage 

kill 



Eurasian Lynx 

Latvia 

2008 

unspecified 

104 

public safety, prevention of serious damage 

kill 



Eurasian Lynx 

Romania 

2007 

unspecified 

22 

public safety, prevention of serious damage 

kill 



Eurasian Lynx 

Romania 

2008 

unspecified 

28 

public safety, prevention of serious damage 

kill 



Eurasian Lynx 

Sweden 

2001 

127 

117 

prevention of serious damage to livestock 

kill 



Eurasian Lynx 

Sweden 

2002 

114 

90 

prevention of serious damage to livestock 

kill 



Eurasian Lynx 

Sweden 

2003 

109 

69 

prevention of serious damage 

kill 



93

Eurasian Lynx 

Sweden 

2004 

37 

27 

prevention of serious damage 

kill 



Eurasian Lynx 

Sweden 

2005 

unspecified 

14 

public safety, prevention of serious damage 

kill 



Eurasian Lynx 

Sweden 

2006 

unspecified 

56 

public safety, prevention of serious damage 

kill 



Eurasian Lynx 

Sweden 

2007/08 

28 

115 

public safety, prevention of serious damage 

kill 



Grey Wolf 

France 

2001 



unspecified 

unspecified 

unspecified 



Grey Wolf 

France 

2002 



unspecified 

unspecified 

unspecified 



Grey Wolf 

France 

2004 





prevention of serious damage to livestock 

kill 



Grey Wolf 

France 

2005 

unspecified 



prevention of serious damage to livestock 

kill 



Grey Wolf 

France 

2006 

unspecified 



prevention of serious damage to livestock 

kill 



Grey Wolf 

Germany 

2003 



unspecified 

unspecified 

unspecified 



Grey Wolf 

Hungary 

2004 



12 

research 

capture 



Grey Wolf 

Italy 

2002 



unspecified 

research 

capture 



Grey Wolf 

Italy 

2005/06 

unspecified 



research 

capture 



Grey Wolf 

Italy 

2005/06 

unspecified 



research, education, reintroduction 

capture 



Grey Wolf 

Romania 

2007 

unspecified 

143 

unspecified 

kill 



Grey Wolf 

Romania 

2008 

unspecified 

169 

unspecified 

kill 



Grey Wolf 

Slovenia 

2004 





prevention of serious damage to livestock 

kill 



Grey Wolf 

Slovenia 

2007 

unspecified 



prevention of serious damage to livestock 

kill 



Grey Wolf 

Slovenia 

2008 

unspecified 



prevention of serious damage to livestock 

kill 



Grey Wolf 

Slovenia 

2005/06 



12 

prevention of serious damage to livestock 

kill 



Grey Wolf 

Spain 

2007 





prevention of serious damage to livestock 

kill 



Grey Wolf 

Spain 

2008 





prevention of serious damage to livestock 

kill 



Grey Wolf 

Spain 

2005/06 



13 

prevention of serious damage to livestock 

kill 



Grey Wolf 

Sweden 

2002 



unspecified 

unspecified 

unspecified 



Grey Wolf 

Sweden 

2003 





prevention of serious damage to livestock 

kill 



Grey Wolf 

Sweden 

2004 





prevention of serious damage to livestock 

kill 



Grey Wolf 

Sweden 

2005 

unspecified 



prevention of serious damage to livestock 

kill 



Grey Wolf 

Sweden 

2006 

unspecified 



prevention of serious damage to livestock 

kill 



Grey Wolf 

Sweden 

2007 





prevention of serious damage to livestock 

kill 



Grey Wolf 

Sweden 

2008 





prevention of serious damage to livestock 

kill 



94

Red Kite 

Belgium 

2002 



unspecified 

unspecified 

unspecified 



Red Kite 

Germany 

2002 

29 

unspecified 

unspecified 

unspecified 



Red Kite 

Germany 

2003 



unspecified 

unspecified 

unspecified 



Red Kite 

Germany 

2004 

23 

unspecified 

unspecified 

unspecified 



Red Kite 

Italy 

2002 



unspecified 

unspecified 

unspecified 



Red Kite 

Poland 

2004 



unspecified 

unspecified 

unspecified 



Red Kite 

Spain 

2002 

16 

unspecified 

unspecified 

unspecified 



Red Kite 

Spain 

2003 

20 

unspecified 

unspecified 

unspecified 



Red Kite 

Spain 

2004 

21 

unspecified 

unspecified 

unspecified 



Red Kite 

Spain 

2006 





reintroduction 

unspecified 



Red Kite 

UK 

2002 

23 

unspecified 

unspecified 

unspecified 



Red Kite  White‐tailed  Eagle  White‐tailed  Eagle  White‐tailed  Eagle  White‐tailed  Eagle  White‐tailed  Eagle 

UK 

2004 



unspecified 

unspecified 

unspecified 



Germany 

2002 



unspecified 

unspecified 

unspecified 



Germany 

2004 



unspecified 

unspecified 

unspecified 



Poland 

2004 



unspecified 

unspecified 

unspecified 



Slovakia 

2004 



unspecified 

unspecified 

unspecified 



Sweden 

2005 



unspecified 

air safety 

unspecified 



 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

*blue text = granting of a 5/6 year licence 

*red text = granting of permanent derogations for "scaring away beavers" 

 

95

Appendix 4. List of case study interviews Country 

Species 

Organisation 

Germany 

Beaver 

Self‐employed specialist 

Germany 

Lynx 

Lynx Project, Harz National Park 

Ireland 

White‐tailed Eagle 

Kerry White‐tailed Eagle Re‐introduction 

Ireland 

White‐tailed Eagle 

Kerry Branch, Irish Farmers Association (IFA) 

Ireland 

White‐tailed Eagle 

Kerry White‐tailed Eagle Re‐introduction 

Latvia 

Beaver 

Fest‐Forest Latvia  

Latvia 

Beaver 

Latvian Ministry of Environmental Protection 

Latvia 

Beaver 

Latvian Nature Conservation Agency 

Netherlands 

Beaver 

Dutch Beaver Working Group 

Netherlands 

Beaver 

Staatsbosbeheer 

Norway 

Beaver 

NINA – Norwegian Institute for Nature Research 

Norway 

Beaver 

Norwegian Association of Hunters and Anglers (NJFF) 

Norway 

Lynx 

NINA – Norwegian Institute for Nature Research 

Norway 

Lynx 

Norwegian Association of Hunters and Anglers (NJFF) 

Norway 

White‐tailed Eagle 

NINA – Norwegian Institute for Nature Research 

Norway 

White‐tailed Eagle 

Norwegian Association of Hunters and Anglers (NJFF) 

Norway 

Wolf 

NINA – Norwegian Institute for Nature Research 

Norway 

Wolf 

Norwegian Association of Hunters and Anglers (NJFF) 

Sweden 

Wolf 

Governmental Commission on Large Carnivores 

Sweden 

Wolf 

Swedish Society for Nature Conservation (SSNC) 

96

Appendix 5. European Union case law review C-412/85 Commission v Germany [1987] E.C.R. I-03503 The Commission of the European Communities raised an action against Germany on the basis that, by authorising derogations from the protections for Birds contained within Article 5 of the Birds Directive (Directive 79/409/EEC) without complying with the criteria outlined in Article 9, the German Government had failed to correctly transpose the Birds Directive into national law. Article 5 provides for general prohibitions on the deliberate killing, capture or disturbance of the species of birds referred to in Article 1 of the Birds Directive. German law prohibited acts which would amount to a breach of Article 5 of the Birds Directive. However derogation from the prohibition was permissible where “the acts concerned take place in the course of ‘the normal use of the land for agricultural, forestry or fishing purposes’ or in the context of ‘the exploitation of the products obtained from such activities.’” The German Government argued that the ‘normal use of land’ did not authorise derogation from Article 5 on the basis that compliance with the provisions within Article 5 was part of the normal use of land. The European Court of Justice (ECJ) held, dismissing Germany’s arguments, that the ‘normal use of land’ was not defined therefore it did not exclude activities which would amount to a breach of Article 5. The ECJ thus held in favour of the Commission and the German Government was held to have failed to implement the Birds Directive as the grounds for derogation did not constitute one or more of the reasons listed in Article 9. Furthermore the ECJ held that where a Member State seeks a derogation from the protections in Article 5 based on the justifications in Article 9, the Member State “must restrict the derogation to cases in which there is no other satisfactory solution”. The derogation must also be based on at least one of the reasons listed in Article 9(1)(a), (b) or (c) and must meet the criteria listed in Article (9)(2). The purpose of the criteria in Article 9(2) is to “limit the derogations to what is strictly necessary and to enable the commission to supervise them.” This case is significant as it means that where the Scottish Natural Heritage seeks to introduce a derogation from Article 5 based on a justification within Article 9, that derogation must be in a case where there “is no other satisfactory solution” and be compliant with the criteria in Article 9. C-252/85 Commission v France [1988] E.C.R. I-02243 The Commission of the European Communities raised an action against the French Government for failure to implement the Birds Directive (Directive 79/409/EEC) within the prescribed period (by the 6 April 1981) contained in Article 18 of the Directive. The Commission alleged that the French Government had failed to fully implement Article 5(b) (prohibiting the deliberate destruction of, or damage to, nests and eggs) and (c) (prohibiting the taking of eggs) of the Directive by only legislating for the protection of nests and eggs during the close season. The French Government argued that the species of birds concerned do not nest during the hunting season; therefore there was no purpose in protecting their nests and eggs throughout the year. The European Court of Justice (ECJ) held in favour of the Commission on the basis that the prohibitions in Article 5(b) and (c) of the Birds Directive "apply without any limitation in time". The uninterrupted protection was justified on the basis that “many species re-use each year nests built in earlier years.” Furthermore the EU Commission alleged a breach of the Birds Directive as the French Government had derogated from the protection in Article 5 by excluding certain species of bird from protection. The French Government argued that derogation from Article 5 was 97

justified due to “the threat which the birds represent to mussel farming, other species of sea birds and air safety.” The ECJ held in favour of the Commission on the basis that the facts indicated the French Government failed to justify the derogation using the criteria in Article 9. In addition the Commission argued that French law contains a general authorisation allowing the keeping of protected birds. This was held by the ECJ to be in breach of Article 5(e) which prohibits the keeping of protected bird species. This case is significant as it establishes the principle that the protections afforded to birds under Article 5 apply all year round. Furthermore where a derogation is sought it must be justified under one of the principles in Article 9. C-339/87 Commission v Netherlands [1990] E.C.R. I-00851 The Commission of the European Communities raised an action against the Netherlands on the basis that the Netherlands had failed to implement the Birds Directive (Directive 79/409/EEC) into national law within the specified time period (by the 6 April 1981). The Commission argued that Netherlands law permited the hunting of several species which are protected by Article 7 of the Birds Directive. The Netherlands Government argued that the hunting derogation was justified as maintaining an open season for hunting was the only method of preventing the species concerned (Carrion crow, jackdaw and magpie) from causing serious damage to agriculture. The European Court of Justice (ECJ) held that a derogation in order to prevent serious damage must be based on at least one of the reasons listed in Article 9(1) and meet the criteria in Article 9(2). The ECJ held that the provisions under national law did not meet these requirements and found in favour of the Commission. Furthermore the Commission argued that the Netherlands Government was in breach of Article 9 by not specifying the methods which may be used to hunt and kill bird species. The Netherlands law permitted the hunting of certain birds by the use of any appropriate means and without limitation in terms of time. Finding in favour of the Commission, the ECJ emphasised the fact that the prohibitions on methods of capture within the Birds Directive must be laid down in legislative provisions in order to ensure legal certainty. Member States are thus under an obligation to adopt laws or administrative provisions to ensure the Birds Directive is adequately transposed. The Commission also alleged that the Netherlands law on derogation relating to the prevention of damage did not accurately correspond to the wording of Article 9. The Netherlands Government argued that the protection within Article 9 was observed by ministerial pratice. The ECJ held that the Netherlands was in breach of its obligation to implement the Directive as the “the criteria which the Member States must meet in order to derogate from the prohibitions laid down in the directive must be reproduced in specific national provisions”. The ECJ stated that “mere administrative practices, which by their nature may be changed at will by the authorities, cannot be regarded as constituting proper compliance with the obligation on Member States to which a directive is addressed, pursuant to Article 189 of the Treaty”. However the ECJ did hold that "the transposition of a directive into national law does not necessarily require the provisions of the directive to be enacted in precisely the same words in a specific express legal provision, and that a general legal context may be sufficient if it actually ensures the full application of the directive in a sufficiently clear and precise manner." This case is significant as it establishes the principle that any derogation for hunting must satisfy the criteria in Article 9(1) and must specify the criteria required in Article 9(2). Moreover member states must transpose the requirements of Article 9 into national law and not merely rely on ministerial or administrative practice. 98

C-374/98 Commission v French Republic [2000] E.C.R. I-10799 The Commission of the European Communities raised an action against the French Republic on the basis that France had; [A] failed to designate the Basses Corbières site as a special protection area (SPA) for the conservation of certain species of birds listed in Annex I of the Birds Directive (Directive 79/409/EEC); [B] failed to adopt special conservation measures concerning the habitat of protected birds, contrary to Article 4(1) and (2) and; [C] failed to take appropriate steps in relation to the Basses Corbières site to avoid disturbance of the species protected on that site and deterioration of their habitat likely to have a significant effect, as a result of the opening and working of limestone quarries. The European Court of Justice held in favour of the Commission. [A] Failure to Designate the Basses Corbières as a SPA The Basses Corbières site contains a variety of Annex I Birds including a pari of Bonelli's eagles and also constitutes an important area for the migration of birds of prey. Based on the facts the ECJ held it was clear that the Basses Corbières should have been classified as a SPA. Therefore the French Government had failed to fulfil its obligations under Article 4(1) of the Birds Directive. [B] Failure to adopt special conservation measures The Commission argued that the special conservation measures required by Article 4(1) of the Birds Directive had not been sufficiently implemented by the French Government as the measures put in place were designed to protect the bio-tope of the Bonelli’s eagle and did not provide a complete protection of all the protected bird species under the relevant provisions of the Birds Directive. However the ECJ held that the measures in place were capable of providing the relevant protection despite only being targeted at the Bonelli’s eagle. Therefore the Commission’s argument was rejected. Furthermore, the Commission also alleged that the measures did not apply to a particular area measuring 950 hectares in size which for a long standing period had been home to large birds of prey such as the Bonelli's eagle, the golden eagle, the peregrine and the eagle owl, and of a corvid such as the red-billed chough. This area, it was argued should have been classified as a SPA. The evidence led indicated that the protection was insufficent and therefore the ECJ held that the French Government had failed to implement the Directive by not classifying the site as a SPA. [C] Failure to take steps to prevent the disturbance and deterioration caused by the limestone quarries The Commission submitted that the opening and working of limestone quarries within the Basses Corbières site amounts to a breach of Article 6 of the Habitats Directive (Directive 92/43/EEC) and is likely to cause disturbance to the species present and a deterioration of their habitat. Specifically, for the Bonelli’s eagle, there was a reduction in the hunting territory and disturbance to reproduction due to visual and noise pollution arising from quarrying activity. Further the Commission argued an appropriate study of the effects of opening a quarry on the Basses Corbières site should have been carried out. The Commission argued that “the cultivation of prey for Bonelli's eagle, the scientific monitoring of that species, the construction of a merlon and a plan for managing the natural environment, besides the fact that they do not concern the other bird species requiring protection, cannot compensate for the disturbance and deterioration caused, since the latter have not been assessed”. The French Government counter argued by stating that there was no scientific evidence to demonstrate any disturbance caused by the quarries on the Bonelli's eagles. Moreover the Bonelli’s eagle was present before the "tautavel quarry began operating in 1968, and that it has since maintained itself on the site without the working of the limestone noticeably causing a disturbance of the species." Furthermore, "nothing in the monitoring of that species, carried out by local bird protection associations independent of the administration, 99

supports the conclusion that moving the Tautavel workings to Vingrau might have negative effects, the nesting area of Bonelli's eagle being in any event unaffected by either of the working sites." The ECJ held that the Habitats Directive Articles 6(2) to (4) are not applicable to areas which have not been classified as SPAs. Therefore Article 6 was not applicable and the ECJ held in favour of the French Government. This is significant as cases where an area should be designated as a SPA but are not will amount to a breach of the Birds Directive. It also demonstrates that it is possible to successfully implement the protective measures required by Article 4 of the Birds Directive indirectly using other protective measures. Finally it demonstrates that where an area is not designated as a SPA the requirements in Article 6 of the Habitats Directive are not applicable. The facts of this case suggest that it is of particular relevance to the adoption of measures to protect the White-tailed Eagle. C-103/00 Commission v Greece [2002] ECR I-01147 The Commission of the European Communities raised an action against the Hellenic Republic alleging that the Hellenic Republic had failed to implement a system of strict protection for the sea turtle Caretta caretta and in doing so breached the Habitats Directive (Directive 92/43/EEC) Article 12(1)(b) and (d). The bay of Laganas on Zakinthos is considered to be an important breeding area for the Caretta caretta. Upon conducting a visit to Zakinthos to ascertain whether protective measures for the sea turtle had been implemented, Commission officials discovered that the protective measures were inadequate. Commission officials reported; “There were no notices on the beaches; there were pedalos and boats in the sea area where their use is prohibited; there were a significant number of beach umbrellas and deck-chairs on various beaches (Kalamaki, Gerakas, Dafni); there were illegal buildings and recent works on the beach at Dafni.” And “mopeds were being driven on the sand beach to the east of Laganas.” The commission argued that the Hellenic Republic had breached Article 12(1)(b) and (d) of the Habitats Directive by failing to implement a legislative framework to protected the sea turtle against deliberate disturbance during the breeding period and deterioration or destruction of its breeding sites. The Greek Government counter argued citing a number of legislative measures which had been enacted designed to facilitate the protection of the Caretta caretta on the island of Zakinthos. The European Court of Justice (ECJ) held that the provisions in force did not sufficiently provide effective protection of the habitat, specifically “the sea and land areas of the bay of Laganas”. Therefore the Greek Government had failed to meet its obligations under Article 12(1)(b) and (d) by failing to take all the requisite specific measures to prevent the deliberate disturbance of the animal species concerned and the deterioration and destruction of its breeding site during its breeding period. The ECJ highlighted the erosion which had been caused to the beaches by the construction of access routes to the beach and the noise arising from human activity as factors. The ECJ therefore held that the Greek Government had failed to adopt a legal framework for the strict protection of Caretta caretta against disturbance and deterioration of its breeding sites. Furthermore the ECJ held that the use of mopeds, specifically the noise pollution produced, on the beach used by the Caretta caretta turtle for breeding amounts to a deliberate disturbance of the species and thus a breach of Article 12(1)(b) of the Habitats Directive. In addition the presence of buildings on the beach amounts to a deterioration or destruction of the breeding site and the presence of small boats near the beaches amounts to a “source of danger to the life and physical well-being of the turtles”. 100

This case is significant as it highlights the fact noise pollution, construction and human presence can amount to a deterioration or disturbance of a protected species and its breeding sites. Furthermore the failure to take action to prevent disturbance or deterioration of a species breeding site amounts to a breach of Article 12(1)(b) and (d). C-434/01 Commission v UK [2003] E.C.R. I-13239 The Commission of the European Communities raised an action against the United Kingdom on the basis that the UK had failed to fulfil its obligations under Articles 12 and 16 of the Habitats Directive (Directive 92/43/EEC) by failing to implement a system that guarantees if planning permission is granted to develop a site which contains a protected species the appropriate authority complies with the conditions contained in Article 16(1)(c) of the Directive when considering whether to grant a derogation from the protections in Article 12. The Commission argued that the appropriate nature conservation agency or other authority responsible for granting a licence to derogate from the protections contained in the Habitats Directive relies on information provided from the local planning authority to determine whether a derogation falls within Article 16 and there are no other satisfactory solutions. The Commission argued that the criteria used by local planning authorities when granting planning permission was not as rigorous as the criteria contained in Article 16(1)(c) of the Habitats Directive. More specifically, the Commission alleged that the local planning authority is not required by law prior to granting planning permission to enquire as to whether there are other satisfactory solutions to a proposed project or that a potential derogation resulting from a proposed project is based on one of the criteria in Article 16(1). The UK counter argued that “none of the appropriate central authorities may grant a licence unless it is satisfied that it falls within one of the grounds set out in Article 16(1)(a) to (e) of the Directive and that the two conditions in Article 16(1) are met.” The UK also argued that the appropriate nature conservation agency or other authority must carry out an independent assessment prior to making a decision whether to grant a derogation licence. The European Court of Justice held in favour of the UK on the basis that the Commission had not provided sufficient evidence to prove that the UK had not fulfilled its obligation under the Directive by failing to implement a system that guarantees the appropriate authority complies with the conditions in Article 16(1)(c). This case is significant because it demonstrates that the appropriate authority which is responsible for granting a licence for a derogation from the relevant provisions of the Habitats Directive must comply with the considerations in Article 16(1) prior to granting a licence. This includes considering whether there is no satisfactory alternative to the derogation and whether the derogation is justified based on one of the criteria in Article 16(1) (e.g. in the interests of public health). C-75/01 Commission v Luxembourg [2003] E.C.R. I-01585 The Commission of the European Communities raised an action against the Grand Duchy of Luxembourg on the basis that the Luxembourg Government had failed to implement the measures contained within the Habitats Directive (Directive 92/43/EEC). The Commission argued that the Luxembourg Government had failed to implement a number of articles of the Habitats Directive including; Articles 1, 4, 5, 6,7, 12, 13, 14, 15, 16, 22 and 23. The Luxembourg Government argued that a draft law had been approved which transposed the directive into national law and that “various national laws and regulations could help to attain certain of the Directive's objectives”.

101

However the European Court of Justice (ECJ) held in favour of the Commission on all points that there had been incomplete, incorrect or failed transposition of the relevant Habitats Directive Articles. Shortcomings in implementation included, but were not limited to, facts such as; [A] the national law failed to implement Article 12(2) by prohibiting the offering for, and exchange of, species listed in Annex IV(a); [B] the national law failed to implement Article 16(1) by failing to ensure that any derogation under Article 16(1) based on the public interest or for scientific purposes, was conditional upon there being no other satisfactory solution; [C] the national law had failed to fully implement Article 12(1)(b) of the Directive by only prohibiting the disturbance of fauna during the periods of breeding, rearing and hibernation but not prohibiting disturbance during the migration period; [D] the national law failed to implement Article 12(4) of the Directive requiring a monitoring system; no such system was established. The ECJ also reaffirmed its previous decisions in cases C-159/99 and C-394/00 that “mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations arising under the EC Treaty”. This case is significant as it confirms that appropriate laws must be created which fully transpose the Habitats Directive. It is not sufficient to rely on ministerial practice as a method of implementation of the Habitats Directive. Case C-6/04 Commission v United Kingdom [2005] ECR I-09017 The Commission of the European Communities raised an action against the United Kingdom on the basis that the UK had failed to fulfil its obligations under the Habitats Directive (Directive 92/43/EEC) by failing to transpose the Habitats Directive into national law. The UK Government argued that it had used general provisions within the relevant legislation to implement the Habitats Directive. The Commission submitted “that the general clauses pleaded by the United Kingdom are not sufficiently precise to ensure transposition into national law of the specific obligations imposed by the directive.” The European Court of Justice (ECJ) held that the legislation relied upon by the UK Government was too general to give effect to the Habitats Directive with a degree of precision and clarity which results in legal certainty. Therefore the ECJ held in favour of the Commission. Examples (all successfully argued) of the incomplete transposition of the Habitats Directive argued by the commission include; [A] that "Article 6(2) of the Habitats Directive had not been formally reproduced in the legislation applicable in Gibraltar"; [C] the UK Government failed to transpose the surveillance obligations within Articles 11 and 14(2) into national law. The ECJ held that UK law did not contain a “statutory duty requiring the national authorities to undertake surveillance of the conservation status of natural habitats and species”. Such an omission ment that there was uncertainty in the law and furthermore failed to guarantee that surveillance of the conservation status of protected species would be “undertaken systematically and on a permanent basis”. The ECJ held that “the surveillance obligation is fundamental to the effectiveness of the Habitats Directive and it must be transposed in a detailed, clear and precise manner." Furthermore the fact that a practice conforms to the requirements of the Habitats Directive is not sufficient reason for failing to transpose the Directive into domestic law;

102

[C] the UK Government had failed to transpose Article 12(4) of the Habitats Directive into national law as its implementing measures contain no requirement for the establishment of a monitoring system for the incidental capture and killing of animal species. Importantly the ECJ held that "in the context of the Habitats Directive, which lays down complex and technical rules in the field of environmental law, the Member States are under a particular duty to ensure that their legislation intended to transpose that directive is clear and precise, including with regard to the fundamental surveillance and monitoring obligations, such as those imposed on national authorities by Articles 11, 12(4) and 14(2) of the directive." Interestingly the ECJ also noted that "in implementing Article 6(2) of the Habitats Directive, it may be necessary to adopt both measures intended to avoid external man-caused impairment and disturbance and measures to prevent natural developments that may cause the conservation status of species and habitats in SACs to deteriorate." This case is relevant to the SNH project as it demonstrates that the surveillance obligation under Articles 11 and 14(2) of the Habitats Directive has to be conducted in a systematically and permanent basis. Furthermore provisions to meet these objectives must be transposed into national law in a detailed, clear and precise manner. C-221/04 Commission v Spain [2006] E.C.R. I-4515 The Commission of the European Communities raised an action against the Kingdom of Spain on the basis that the Spanish Government had failed to fulfil its obligations under Article 12(1) of the Habitats Directive (Directive 92/43/EEC) by authorising the setting of stopped snares for fox hunting in several private hunting areas in which otters can be found. The Commission argued that the granting of a permit to use stopped snares amounts to a breach of Article 12(1)(a) of the Habitats Directive as it results in the deliberate capture or killing of otters. Article 12(1) and Annex VI(a) of the Habitats Directive precludes the use of traps which amount to a non-selective hunting method according to their principle or their conditions of use. Annex IV(a) protected species include the Lutra lutra (the otter). The European Cour of Justice (ECJ) held that under the Directive the methods and means of capture and killing listed in Annex VI(a) are prohibited only as regards the cases referred to in Article 15 of the Directive. Article 15 prohibits the use of non-selective means to capture or kill species listed in Annex V(a) and where a derogation is granted under Article 16 to capture or kill species listed in Annex IV(a). The ECJ held that the permit was issued for fox hunting and because the fox is not a species listed in Annex IV(a) or Annex V(a) the prohibition in Annex VI(a) on non-selective hunting methods is not applicable. The ECJ therefore held in favour of the Spanish Government on this issue. The ECJ also established a legal test that; in order to meet the requirement of “deliberate capture or killing” in Article 12(1)(a), “it must be proven that the author of the act intended the capture or killing of a specimen belonging to a protected animal species or, at the very least, accepted the possibility of such capture or killing.” With this test in mind the ECJ found that the Spanish Government had granted the permits for the purpose of fox hunting, not the intention to capture otters. This fact combined with the fact that the Commission had failed to supply sufficient evidence to prove the presence of otters in the relevant area led the ECJ to conclude that it could not be established that by issuing the permits the Spanish Government intended to capture otters or knew that they risked endangering otters. The ECJ thus held in favour of the Spanish Government. This case is significant as it establishes the principle that for a breach of Article 12(1)(a) of the Habitats Directive to occur, the Commission must prove that the perpetrator of the action 103

had the intention to capture or kill a protected animal species or at least be aware of the possibility of such capture or killing. Furthermore it proves that non-selective hunting methods may be used for the purpose of hunting species outside of Annex VI(a) and Annex V(a) of the Habitats Directive. C-518/04 Commission v Greece [2006] E.C.R. I-42 The Commission of the European Communities raised an action against the Hellenic Republic on the basis that the Greek Government had failed to fulfil its obligation under the Habitats Directive (Directive 92/43/EEC) by failing to put in place legal measures to protect the Vipera Schweizeri on the island of Milos. The Commission argued that the presence and operation of mines in the breeding area and resting places of the Vipera schweizeri resulted in disturbance of that species during the period of breeding and the deterioration or destruction of breeding sites in breach of Article 12(1)(b) and (d) of the Habitats Directive. The European Court of Justice held that the Greek Government had failed comply with the Habitat Directive Article 12(1)(b) and (d) by not taking the necessary measures to establish an effective system of strict protection for the viper Vipera schweizeri on the island of Milos. C-183/05 Commission v Ireland [2007] E.C.R. I-137 The Commission of the European Communities raised an action against Ireland on the basis that Ireland had failed to fulfil its obligations under the Habitats Directive (Directive 92/43/EEC) by failing to implement Article 12(1) into national law. The Commission alleged that the measures adopted by Ireland to implement the relevant sections of the Habitats Directive are “disparate and patchy and cannot be regarded as an appropriate system of strict protection within the meaning of the Habitats Directive." The European Court of Justice (ECJ) found in favour of the Commission holding that, asides from the monitoring system which was in place for the natterjack toad, there was no suitable monitoring programme for species listed in Annex IV(a) of the Habitats Directive. In addition the Commission argued that the Irish authorities do not possess the required information necessary concerning certain Annex IV(a) species including information on their breeding grounds, resting places and the threats they are subject to in order to implement a system of strict protection. Ireland counter argued claiming the monitoring programmes used provided sufficient data to protect Annex IV(a) species. However the ECJ held in favour of the Commission that the Irish authorities had failed to take measures to effectively implement the system of strict protection necessary according to Article 12(1) of the Habitats Directive. In addition the ECJ found that the Irish authorities had approved development projects, which contained the risk of disturbing the breeding sites and resting places of protected species including bat species, without the necessary valid derogation under Article 16. In holding in favour of the commission the ECJ also affirmed its decision in case C-103/00 that “Article 12(1) of the Habitats Directive requires the Member States not only to adopt a comprehensive legislative framework but also to implement concrete and specific protection measures." And affirmed its decision in Case C-518/04 that a system of strict protection “presupposes the adoption of coherent and coordinated measures of a preventive nature”. This case is significant because it establishes the principle that a suitable monitoring system must be put in place for each of the species listed in Annex IV(a) of the Habitats Directive. Further it establishes that a monitoring programme cannot be established where insufficent 104

information is available regarding threats to a species and the breeding grounds and resting places of the species. C-342/05 Commission v Finland [2007] E.C.R. I-04713 The Commission of the European Communities raised an action against the Republic of Finland on the basis that the Finnish Government failed to fulfil its obligations under Articles 12(1) and 16(1) of the Habitats Directive (Directive 92/43/EEC) by authorising wolf hunting in breach of the grounds of derogation under Article 16. Wolf hunting in Finland was authorised by the relevant game management district on a case by case basis. The maximum number of Grey Wolves which could be hunted within the hunting season was set by the Ministry of Agriculture and Forestry. Wolf hunting can be justified under Article 16(1)(b) to prevent serious damage as a derogation from the special protections in Article 12. The Commission argued that “the practice in Finland consisting in authorising hunting as a preventive measure is contrary to Article 16(1) of the Habitats Directive”. The Finnish Government argued that Article 16(1) of the Habitats Directive did not prohibit derogations being taken from the system of strict protection as a preventative measure in order to prevent serious damage. The European Court of Justice (ECJ) held that it was not necessary for serious damage to be sustained prior to derogating measures being adopted. However the Finnish Government admitted that, due to the fact the wolf is a pack animal, hunting permits were being issued on a preventative basis without targeting specific animals which are likely to cause damage. Therefore permits were being issued for the hunting of Grey Wolves which may not be likely to cause damage and thus the issuing of permits was not justified under Article 16(1)(b). The ECJ therefore held in favour of the Commission and found the Finnish Government to have failed to fulfil its obligations under Articles 12(1) and 16(1)(b) of the Habitats Directive by authorising wolf hunting on a preventative basis without it being established that the hunting is such as to prevent serious damage within the meaning of Article 16(1)(b). In holding this, the ECJ reaffirmed its decision in case C-441/02 Commission v Germany [2006] E.C.R. I-3449 that "A failure to fulfil obligations may arise due to the existence of an administrative practice which infringes Community law, even if the applicable national legislation itself complies with that law". This case is significant because it establishes the principle that all derogations from Article 12(1) must be justified under Article 16. Furthermore where a permit for hunting of an Annex IV(a) species is issued under a derogation under Article 16(1)(b) the permit must be for the specific specimen of the species which is likely to cause damage. C-507/04 Commission v Austria [2007] E.C.R. I-05939 The Commission of the European Communities raised an action against the Republic of Austria on the basis that Austria had failed to fulfil its obligations under several articles of the Birds Directive (Directive 79/409/EEC). In its application before the court the Commission raised a total of 39 complaints against the Republic of Austria that the laws of various provinces within Austria failed to implement provisions within the Birds Directive. The Commission was successful in the following grounds; [A] Austria breached the following Articles of the Birds Directive; 1(1), 1(2), 5, 7(1), 7(4), 9(1), 9(2) in relation to the failure to include protection for a number of species of wild birds under those Articles within national legislation. 105

[B] Austria breached Article 6(1) of the Birds Directive by excluding in national legislation the black-billed magpie, the carrion crow and the hooded crow from the protection provided under Article 6(1). [C] Austria breached Article 7(1) of the Birds Directive by permitting, under national legislation, the hunting of the carrion crow, the jay and the black-billed magpie from 1 July to 15 March. These species may not be hunted under Article 7(1) and (3). [D] Austria breached Article 7(4) of the Birds Directive by permitting hunting seasons for the common coot, wood pigeon and collared dove within the Province of Carinthia which were incompatible with those established by Birds Directive. [E] Austria breached Article 7(4) of the Birds Directive by permitting hunting seasons for a number of species in terms incompatible with the Directive. For example the hunting season for the woodcock was over five months long and was therefore incompatible as it placed excessive pressure on the population. Furthermore Article 7(4) was breached in relation to the capercaillie and black grouse as the hunting season fell within the mating season which was, based on facts presented, incompatible with Article 7(4). [F] Austria breached Article 8 of the Birds Directive by not providing provisions within it’s national legislation which specified sufficiently the means of hunting prohibited under Article 8 of the Birds Directive. This was contrary to the obligation that Article 8 places on Member States in the interests of legal certainty to draw up “with binding legal force, the list of unlawful practices”. [G] Austria breached Article 9(1) and (2) as it’s national law did not comply with the conditions for derogation set out by these provisions. For example Austria breached the Birds Directive by failing to specify within it’s national law the "means, arrangements or methods authorised for capture or killing" of the European starling. This was in breach of the requirements for outlining detailed rules for derogation which are contained within Article 9(2)(b) of the Birds Directive. The ECJ held that the relevant national laws and regulations must “set out exhaustively the grounds allowing derogation, where appropriate, from the protective provisions laid down by the Directive.” Therefore Austria had breached Article 9. [H] Austria breached Article 11 of the Birds Directive by failing to ensure that national legislation was compatible with Article 11 in ensuring that any introduction of non-naturally occurring species of bird does not prejudice the local flora and fauna. Case C-383/09 Commission v France [2009] OJ C312/26 The European Commission raised an action against the French Republic on the basis that the French Government had failed to fulfil its obligations under Article 12(1)(d) of the Habitats Directive (Directive 92/43/EEC) by failing to establish a programme of measures to ensure strict protection of the European hamster (Cricetus cricetus). The Commission contended that the European hamster, a species protected under Annex IV(a) and Article 12(1) of the Habitats Directive, was threatened with complete extinction in the near future. Furthermore the Commission maintained that there has been a significant reduction in the European hamster population as a result of urbanisation and changes in agricultural practice. In addition the Commission argued that the French Republic had not taken adequate measures to prevent the deterioration of breeding sites or resting places of the European hamster. By contrast the French Republic submitted that the measures adopted were adequate and proportionate to the objective of strict protection under the Habitats Directive.

106

The Commission led evidence establishing that the measures adopted by the French Republic, which included; establishing three ‘priority action areas’ PPA's upon which an objective of growing 22% of crops favourable to the European hamster was set, had not been achieved. This combined with the increase in the development of maize crops in Alsace (which within France is the only region where the European hamster can be found) and the disappearance of agricultural land in favour of urbanisation were all factors in the reduction of the European hamster population. The European Court of Justice considered the evidence submitted regarding deterioration of the European hamster habitat, breeding and resting places and found in favour of the Commission that the French Republic had adopted measures which were not adequate to "enable effective avoidance of deterioration or destruction of the breeding sites or resting places of the European hamster." Therefore the ECJ held in favour of the Commission that the French Republic had failed to fulfil its obligations under Article 12(1)(d). Moreover in finding in favour of the Commission the ECJ also affirmed its decision in case C183/05. The ECJ held that Article 12(1)(d) places a positive obligation on Member States to adopt both a comprehensive legislative framework and to implement a concrete and specific protection measures. In addition the ECJ also affirmed its decision in case C-518/04 that; "the system of strict protection presupposes the adoption of coherent and coordinate measures of a preventive nature.” The ECJ also affirmed its decision in case C-103/00 that; “a system of strict protection must... enable the effective avoidance of deterioration or destruction of breeding sites or resting places of the animal species listed in Annex IV(a) to the Habitats Directive” This case is significant as it establishes the principle that a system of strict protection of coherent and coordinated measures must be established for Annex IV(a) protected species. Furthermore such a system must also be preventative in nature. C-308/08 Commission v Spain [2010] E.C.R. I-4261 The European Commission raised an action against the Kingdom of Spain on the basis that the Spanish Government had failed to fulfil its obligations under the Habitats Directive (Directive 92/43/EEC) Articles 6 and 12 in relation to a project for upgrading a country road. The Donana Natural Park was proposed as a Site of Community Importance (SCI) in 1997. In 1999, prior to the Commission placing it on the list of SCI, a road was upgraded which cut through a section of the proposed SCI. The Commission argued that the Spanish Government had failed to fulfil its obligations under Articles 6 and 12 of the Habitats Directive by not preventing a negative impact on the environment and the native Iberian lynx population which resulted from the upgrading of the road. The Commission further alleged that the road upgrade left the habitat of the Iberian lynx fragmented and also exposed the Iberian lynx to “the risk of fatal accidents, since the protective measures could not be regarded as appropriate". The European Court of Justice (ECJ) stated that various preventative measures had been adopted including; the creation of wildlife crossings and bridges to allow movement of the Iberian lynx across the road; the introduction of measures to deter speeding; the provision of road signs and the erection of animal fencing. The ECJ held that there was insufficent evidence to suggest that the upgrading of the road itself, baring in mind the preventative measures adopted, resulted in placing “the Iberian lynx on the site concerned in danger of extinction... which, accordingly, risks seriously compromising the ecological characteristics of that site.” Therefore the ECJ held in favour of the Spanish Government on this issue. However, importantly, the Commission also futher argued that the Spanish authorities had not established a system for monitoring the incidental killing on the road of Iberian lynx and 107

had failed to take conservation measures to prevent a negative impact on the species resulting from these accidental deaths, thus breaching Article 12(4) of the Habitats Directive. The Spanish Government argued that it had adopted measures necessary and continued to monitor those measures. Based on the facts submitted the ECJ held in favour of the Spanish Government. This case is relevant to this report as it highlights the fact that where a species has been reintroduced, local developments such as road upgrades may need to be altered in order to accommodate for the special protection afforded to the reintroduced species. This can be achieved by adopting suitable preventative measures. Furthermore the case highlights the obligation under Article 12(4) to establish a system of monitoring the reintroduced species. C-508/09 Commission v Italy [2011] (03 March 2011)208 This case concerned the incorrect transposition of Article 9 of the Birds Directive 79/409/EEC into Italian national law. The Court held that the region of Sardinia failed in its obligations under EU law by adopting and applying legislation for authorising derogations which do not comply with the conditions set out in Article 9 of the Directive. The ECJ held that; “Since the region of Sardinia has adopted and applies legislation, relating to the authorisation of derogations from the rules for the protection of wild birds, which does not comply with the conditions laid down in Article 9 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, the Italian Republic has failed to fulfil its obligations under Article 9 of that directive;”

208

Not currently available in English.

108

Appendix 6. References for survey of EU and Non-EU European reintroductions 1

Mateju, J., Ricanova,S., Ambros, M., Kala, B., Hapl, E. & Mateju, K. 2010. Reintroductions of the European Ground Squirrel (Spermophilus citellus) in Central Europe (Rodentia: Sciuridae). Lynx, n. s. (Praha), 41,175.

2

IUCN. 2011. IUCN Red List of Threatened Species, Version 2011.2. Available at www.iucnredlist.org. Last accessed 23 March 2008.

3

Férnandez-Móran, J., Saavedra, D. & Manteca-Vilanova, X. 2002. Reintroduction of the Eurasian otter (Lutra lutra) in northeastern Spain: Trapping, handling, and medical management. Journal of Zoo and Wildlife Medicine, 33 (3), 222.

4

NABU. 2005. Abstracts of the Biology and Conservation of the European Wildcat Symposium, Germany

5

Kidjo, N., Feracci, G., Bideau, E., Gonzalez, G., Mattéi, C., Marchand, B. & Aulagnier, S. 2007. Extirpation and reintroduction of the Corsican red deer Cervus elaphus corsicanus in Corsica. Oryx, 41 (4), 488.

6

Bertolero, A., Oro, D. & Besnard, A. 2007. Assessing the efficacy of reintroduction programmes by modelling adult survival: the example of Hermann's tortoise. Animal Conservation, 10 (3), 360.

7

European Commission. 2011. LIFE preventing species extinction: Safeguarding endangered flora and fauna through ex-situ conservation.

8

Wynhoff, I., Oostermeijer, J., Van Swaay, C., Van Der Made, J. & Prins, H. 2000. Reintroduction in practice: Maculinea teleius and M. nausithous (Lepidoptera: Lycaenidae) Entomologische Berichten Amsterdam, 60 (6), 107.

9

Witkowski, Z., Adamski, P., Kosior, A. & Plonka, P. 1997. Extinction and reintroduction of Parnassius apollo in the Pieniny National Park (Polish Carpathians). Biologia Bratislava, 52 (2),199.

10

Espinosa, F., González, A. R., Maestre, M. J., Fa, D., Guerra-García, J. M. & GarcíaGómez, J.C. 2008. Responses of the endangered limpet Patella ferruginea to reintroduction under different environmental conditions: survival, growth rates and lifehistory. Italian Journal of Zoology, 75 (4), 371

11

The World Association of Zoos and Aquariums (WAZA) website at http://www.waza.org/en/site/conservation/waza-conservation-projects/overview/blackstork-reintroduction. Last accessed 23 March 2008.

12

Hetherington D., Miller D., Macleod C. & Gorman M. 2008. A potential habitat network for Eurasian lynx in Scotland. Mammal Review, 38, 285.

13

The Red Kite Project website at http://www.goldeneagle.ie/portal.php?z=13. Last accessed 23 March 2012.

14

O’Toole, L., Fielding A. H. & Haworth P. F. 2002. Re-introduction of the golden eagle into the Republic of Ireland. Biological Conservation, 103, 303.

15

Whitfield, D.P., Duffy, K., McLeod, D.R.A., Evans, R.J., MacLennan, A.M., Reid, R., Sexton, D., Wilson, JD. & Douse, A. 2009. Juvenile dispersal of White-tailed Eagles in 109

western Scotland. Journal of Raptor Research, 43, 110. 16

Hernández, M., & Margalida, A. 2009. Assessing the risk of lead exposure for the conservation of the endangered Pyrenean bearded vulture (Gypaetus barbatus) population. Environmental research, 109 (7), 837.

17

Loria, G. R., Ferrantelli, E., Giardina, G., Vecchi, L. Li., Sparacino, L., Oliveri, F., McAuliffe, L. & Nichola R. A. J. 2008. Isolation and Characterization of Unusual Mycoplasma spp. from Captive Eurasian Griffon (Gyps fulvus) in Sicily. Journal of Wildlife Diseases, 44, 159.

18

Action plan for the Cinereous Vulture (Aegypius monachus) in Europe. 1996. Report for the European Commision compiled by Birdlife International

19

Alcaide, M., Negro J. J., Serrano D., Antolín J. L., Casado, S. & Pomarol, M. 2010. Captive breeding and reintroduction of the Lesser Kestrel Falco naumanni: a genetic analysis using microsatellites. Conservation Genetics, 11 (1), 331.

20

Sielicki, J & Mizera, T (eds.). 2008. Peregrine Falcon Populations - status and perspectives in the 21st century. Warsaw and University of Life Sciences Press, Poland.

21

Krone, O., Essbauer, S., Wibbelt, G., Isa, G., Rudolph, M. & Gough, R.E. 2004. Avipoxvirus infection in peregrine falcons (Falco peregrinus) from a reintroduction programme in Germany. Veterinary Record, 154 (1), 110.

22

Grouse News. 2004. Newsletter of the WPA/BirdLife/Species Survival Commission Grouse Specialist Group; November 2004, Issue 28

23

RSPB The Great Crane Project website at http://www.rspb.org.uk/supporting/campaigns/greatcraneproject/project.aspx. Last accessed on 23 March 2012.

24

Carter, I. & Newbery, P. 2004. Reintroduction as a tool for population recovery of farmland birds. Ibis, 146, 221.

25

Carlos Pacheco, C. & McGregor, P.K. 2004. Conservation of the purple gallinule (Porphyrio porphyrio L.) in Portugal: causes of decline, recovery and expansion. Biological Conservation, 119 (1), 115.

26

Dalbeck L. & Heg, D. 2006. Reproductive success of a reintroduced population of Eagle Owls Bubo bubo in relation to habitat characteristics in the Eifel, Germany. Ardea, 94 (1), 3.

27

Johnstone, I., Mucklow, C., Cross, T., Lock, L., & Carter I. 2011. The return of the Redbilled Chough to Cornwall: the first ten years and prospects for the future. British Birds, 104, 416.

110

www.snh.gov.uk © Scottish Natural Heritage 2012 ISBN: 978-1-85397-884-5 Policy and Advice Directorate, Great Glen House, Leachkin Road, Inverness IV3 8NW T: 01463 725000 You can download a copy of this publication from the SNH website.