The wolf north of the Duero and European Union law

By Agustin Garcia Ureta, Professor of Administrative Law, University of the Basque Country/Euskal-Herriko Unibertsitatea.

1. In 1992, the European Union adopted Directive 92/43 on the conservation of natural habitats and of wild fauna and flora. This regulation protects a wide range of flora and fauna species under two categories. On the one hand, those that enjoy strict protection. These are protected by a series of prohibitions, subject to strict exceptions. Those in the second group can, in principle, be "collected from the wild" and "exploited," but only if certain conditions are met that cannot be overridden. Regarding the latter, mentioned in Annex V of the Directive, Article 14 states the following:

• If Member States consider it necessary in view of the surveillance provided for in Article 11, they shall take measures to ensure that the collection from nature of specimens of the species of wild fauna and flora (1) listed in Annex V, as well as their exploitation, are compatible with maintaining those species in a favourable conservation status.

• If such measures are considered necessary, they shall include the continuation of the surveillance provided for in Article 11. In addition, such measures may include, in particular:

– provisions relating to access to certain sectors;
– the temporary or local prohibition of the collection of specimens from the wild and the exploitation of certain populations;
– the regulation of the periods and/or methods of collecting specimens;
– the application, for the collection of specimens, of hunting or fishing regulations that respect the conservation of said populations;
– the establishment of a system of authorization for the collection of specimens or quotas;
– the regulation of the purchase, sale, marketing, possession or transportation for the purpose of sale of specimens;
– the captive breeding of animal species, as well as the artificial propagation of plant species, under conditions of strict control in order to limit the collection of specimens from the wild;
– the evaluation of the effect of the measures taken.” (2)

2. The fate of the Iberian wolf depends to a certain extent on a boundary established at the Duero River when the Habitats Directive was adopted. From there southward, it is considered a priority species, primarily because the wolf's conservation status is poor. From the Duero River northward, this species is not a priority. However, this does not imply that it can be hunted or captured. The Directive states that this is possible as long as such exploitation is compatible with maintaining its "favorable conservation status." This last reference is central to the Directive, as it constitutes its basic objective.

3. With regard to this objective, the Court of Justice of the EU (CJEU) has already stated, in Case C‑436/22, Asociación para la Conservación y Estudio del Lobo Ibérico (ASCEL) v. Administración de la Comunidad de Castilla y León (judgment of 29 July 2024), that the hunting referred to in the Habitats Directive “may be restricted or prohibited if necessary to maintain or restore the species concerned to a favourable conservation status.” A species, namely the wolf north of the Duero, “may not be exploited for hunting or hunted if effective monitoring of its conservation status is not guaranteed.” In the ASCEL case, the CJEU found that, according to the reference documentation relevant to determining the conservation status of the wolf in Spain, the populations of this species are in an "unfavorable-inadequate" conservation status in the three biogeographical regions occupied by the wolf, namely the Alpine, Atlantic and Mediterranean regions, including, consequently, those located both north and south of the Duero River.

4. From the above, the CJEU has concluded, on the one hand, that the competent authorities (i.e., the Autonomous Communities) must adopt measures to improve the conservation status of the wolf, so that populations of this species will achieve a favorable conservation status in the future. The second conclusion is, if anything, more important, namely, that "the restriction or prohibition of hunting," as a result of the verification of an unfavorable conservation status for said species, can be considered a necessary measure for restoring its conservation status.

5. On March 20, Congress approved a bill repealing the inclusion of the wolf (3), in 2021, in the so-called List of Wild Species under Special Protection Regime of the Law on Natural Heritage and Biodiversity. However, in view of the news that has emerged following the approval of this bill and statements that the wolf can be hunted north of the Duero, some strictly legal aspects must be clarified, because in this matter, apart from the opinions that may legitimately be held in any democratic society, the guideline is set by the current regulations approved by the EU and interpreted by the CJEU and not the legislation of a Member State.

6. First, it must be remembered that the CJEU's interpretation of European legislation, namely the Habitats Directive, prevails over all powers of the Member States, including the legislative branch. Second, in light of the aforementioned ruling in the ASCEL case, the possible hunting of wolves north of the Duero River is far from possible, even after the approval of the aforementioned bill. Those Autonomous Communities that eventually intend to adopt measures for wolf hunting north of the Duero River, based on the amendment approved on March 20, are subject to the CJEU's ruling on the Habitats Directive. This includes a factual finding that, incidentally, could not be refuted before the CJEU in the ASCEL case, namely, that the conservation status of wolves in the three biogeographical regions into which the Iberian Peninsula is divided is unfavorable. Therefore, the proposal approved on the 20th cannot authorize what the Habitats Directive does not permit if its conditions are not first met.

7. In a work published in 2021 (4), the author of this article already presented the data that emerged from the European Commission's reports through EIONET (5), that is, the European environmental information and observation network, which arises from the collaboration of the European Environment Agency, the 27 EU Member States, Iceland, Liechtenstein, Norway, Switzerland, and Turkey, plus 6 collaborating States: Albania, Bosnia and Herzegovina, North Macedonia, Montenegro, Serbia and Kosovo. The European Commission refers to these data on its website when referring to the implementation reports of the Habitats Directive, under its article 17. Now, according to the information accessible in EIONET for the period 2013-2018, for the three biogeographical regions occupied by the wolf in Spain, that is, the Alpine, Atlantic and Mediterranean, the status of the different evaluation criteria was summarized as follows:

8. In light of the above, the following was concluded in the cited work:

“Consequently, in all three biogeographical regions, the overall assessment is unfavorable, and there is also a high degree of ignorance regarding the status of other criteria, such as future prospects. These factual circumstances must be taken into account, both in the event that, south of the Duero, one of the exceptions to a general prohibition applies, and also in the north of this river, due to the requirements imposed by Article 14 [of the Habitats Directive] analyzed above. Furthermore, the jurisprudential requirement that the precautionary principle be taken into account (…) limits the possible implementation of Article 14. To the above, we must add what has already been noted regarding the consideration of the status of the species in its natural range and the effects on populations in third countries, in particular Portugal.”

9. However, the approved bill relied on the fact that the European Commission had proposed "a substantial change," which meant that the wolf would no longer be considered a priority species. Indeed, on 27 September 2024, the EU submitted a proposal to move the wolf from Annex II to Annex III of the Convention on the Conservation of European Wildlife and Natural Habitats (to which the EU and its Member States are Parties).

10. With this, the wolf has been reduced from being considered a "strictly protected fauna species" to a "protected fauna species," thus reducing its level of protection. This amendment came into effect on March 7, 2025.

11. This means that Article 6 of the Convention, relating to Annex II, no longer applies to wolves. This provision states the following:

“Each Contracting Party shall adopt the appropriate and necessary legislative and regulatory measures to ensure the specific conservation of the species of wild fauna listed in Annex II. Specifically, the following shall be prohibited for these species:
a) any form of intentional capture, possession and intentional killing;
b) the intentional damage or destruction of breeding sites or resting areas;
(c) the intentional disturbance of wildlife, particularly during the breeding, rearing and hibernation periods, provided that the disturbance has a significant effect in light of the objectives of this Convention;
d) the intentional destruction or collection of eggs, wherever found in nature, or their possession, even if empty;
(e) the possession and internal trade of such animals, whether alive or dead, including stuffed animals, and of any easily identifiable part or product obtained from the animal when this measure contributes to the effectiveness of the provisions of this article.”

12. Following the reform, the wolf is now listed in Annex III, regulated by Article 7. This provides as follows:
“1. Each Contracting Party shall adopt appropriate and necessary legislative and regulatory measures to protect the species of wild fauna listed in Annex III.
2. Any exploitation of wildlife listed in Appendix III shall be regulated in such a way as to maintain the existence of those populations free from danger (6), taking into account the provisions of Article 2.
3. Such measures shall include in particular:
a) the establishment of closure periods or other regulatory operating measures;
(b) the temporary or local prohibition of exploitation, where appropriate, in order to allow existing stocks to return to a satisfactory level;
c) the regulation, if applicable, of the sale, possession, transportation or offering for sale of wild animals, whether alive or dead.”

13. The Convention does not use the phrase “favorable conservation status,” which is used in the Habitats Directive, but it does impose the obligation to maintain “the existence of these populations [in Appendix III] outside of danger.”

14. In any case, the standard continues to be set, for EU purposes, by the directive and, consequently, by the case law arising from the aforementioned ASCEL case. The basic threshold for protection remains that established by the directive in its Article 14. In fact, Member States may maintain it as a "strictly protected" species (a species requiring strict protection, in the language of the directive).

15. Therefore, those Autonomous Communities that intend to authorize the capture of a certain number of Iberian wolves, particularly north of the Duero, must first prove that their conservation status is favorable, which, in light of the CJEU ruling in the ASCEL case, is far from realistic.