The Commission’s mission to downgrade wolf protection
Killing wolves must be made easier. That is the gist of a proposal, filed by the European Commission on 7 March 2025, to amend the appendices of the Habitats Directive. The amendment would remove the strictly protected Annex IV status which wolves currently enjoy in most Member States, and replace it with the more flexible protection regime of Annex V. Under the Annex IV regime (of Article 12), wolves may only be killed (1) for certain listed purposes, (2) when alternatives to killing are demonstrably absent, and (3) when the achievement or maintenance of the population’s “favourable conservation status” is not affected. Under the Annex V regime (of Article 14), only the third criterion applies.
After decades of consistently rejecting intermittent requests from Member States to lower wolves’ protected status, the Commission’s position recently swivelled. By the end of 2023, the Commission officially announced its intention to downgrade the protected status of Canis lupus, and the Council’s approval was obtained in the course of 2024. Allegations that this U-turn was the outcome of a personal vendetta by Ursula von der Leyen, in response to a fatal wolf attack on her pony Dolly, are hopefully unfounded.
The first step was to downlist wolves under the Bern Convention on European wildlife conservation, to which all Member States and the EU itself are parties. That mission was accomplished late last year, without much difficulty, given that EU countries compose a majority of Convention parties. The second step, downlisting under the Habitats Directive, was initiated as soon as the wolf’s new legal status under the Convention took effect on 7 March.
The amendment proposal, however, suffers from remarkable flaws. In this blog post, we highlight some important ones. One problem concerns the legislative route chosen by the Commission. Another shortcoming is the lack of a sound scientific basis. Besides, the downlisting plan stands in stark contrast with evolving ecological and ethical insights, and goes against the grain of a global trend towards greater tolerance for non-human neighbours and the associated policy objective of human-wildlife coexistence.
Cutting legal corners to avoid the hurdle of unanimity
The legal basis chosen by the Commission for its amending directive is Article 192(1) of the Treaty on the Functioning of the European Union (TFEU). This entails adoption “in accordance with the ordinary legislative procedure,” through qualified majority voting.
This choice is puzzling to say the least, since the Habitats Directive itself provides for a specific procedure for amending its Annexes. Article 19 of the Directive states that changes necessary for adapting Annexes I, II, III, V and VI to technical and scientific progress shall be adopted by the Council acting by qualified majority on a proposal from the Commission. The threshold for amendments to Annex IV is substantially and purposefully higher, as those can be adopted only “by the Council acting unanimously on a proposal from the Commission.” The rationale behind this distinction appears obvious: species listed as strictly protected can only be downlisted if there is unanimous agreement that their populations (amply) meet the conditions for a “favourable conservation status”, so as to protect them against the whim of political opportunism. The Court of Justice of the EU (CJEU) recently underscored that protected species that have achieved a favourable conservation status “must be protected against any deterioration of that status” (Case C-601/22, WWF Österreich, para. 44, and Cases C-473/19 and C 474/19, Föreningen Skydda Skogen, para. 65 and 66).
There is nothing to suggest that Article 19 of the Habitats Directive is not applicable in the present context. When EU enlargement required the addition of species and habitat types, the Directive’s Annexes have only been amended by unanimous voting in the Council. Moreover, Article 19 was validated by the CJEU as recently as 2024, in a ruling on Austrian wolf management (C-601/22). That case arose in response to Austria’s claim that the EU legislature should have had recourse to Article 19 for the purpose of removing the wolf population in Austria from the system of strict protection enshrined in Article 12 of the Habitats Directive. The Court noted that “the EU legislature inserted, in Article 19(2), a development clause enabling the Council, acting unanimously on a proposal from the Commission, to adapt Annex IV to that directive to technical and scientific progress” (para. 39). The judgment contains no indication whatsoever that this procedure is somehow problematic (see also para. 7, 40 and 42).
Unsurprisingly, the Court dismissed Austria’s arguments, following the Opinion of Advocate-General Ćapeta in which she observed that it is not within the Court’s competence to rewrite legal provisions, including Annexes forming part of the Habitats Directive, or to circumvent existing procedures, such as the one provided for by Article 19 (para. 62). Likewise, it obviously also is not within the competence of the Commission to flagrantly circumvent the procedure of Article 19 of the Habitats Directive. The Commission’s likely reason to do so anyway is to dodge the onerous obstacle of required unanimity, whereby even one critical Member State could veto downlisting.
In addition, it is worth pointing to the outcome of the 2017 Fitness Check of the EU Nature Legislation, which indicated that the Habitats Directive remained fit for purpose and that no amendments to its text were needed. In addition, the Commission clarified then that no amendments to the Annexes were called for either (p. 63).
In conclusion, if the proposed amending directive for wolf downlisting is indeed adopted by qualified majority rather than unanimity, there will be solid arguments to hold that, if challenged under Article 263 TFEU or a preliminary procedure ex. Article 267 TFEU, the CJEU should annul the act for lack of competence or infringement of an essential procedural requirement.
Informed decision-making and the precautionary principle
In reviewing the legality of EU acts the CJEU has traditionally exercised restraint and adopted a ‘manifest error test’ to assess whether EU authorities have exceeded the limits of their discretion. This high threshold for illegality is especially appropriate if measures concern complex scientific assessments. However, there are plenty of reasons to expect that the Court would not hold back when reviewing the legality of this amending directive, should it be adopted and subsequently challenged.
Article 191 TFEU provides that EU policy on the environment shall aim at a “high level of protection” and must be based on the precautionary principle and the principle that preventive action should be taken (para. 2). Likewise, account shall be taken of “available scientific and technical data” (para. 3).
The CJEU has consistently emphasized the importance of scientific rigour and precaution in its case law on species protection under the Habitats Directive, including with regard to wolves. For instance, as the Court held in a 2019 ruling on Finnish wolves (Case C-674/17, Tapiola), decisions to derogate from strict protection under the Annex IV regime must be based on “rigorous scientific data” (para. 45) and the precautionary principle. In particular, “if, after examining the best scientific data available, there remains uncertainty” as to whether a derogation will be detrimental to the favourable conservation status, the Member State “must refrain from granting or implementing that derogation” (para. 66, confirmed also in Case C-601/22, para. 64). Similar considerations apply to the killing of wolves under the Annex V regime: “if, after examining the best scientific data available, there remains uncertainty as to whether the exploitation of a species (…) is compatible with the maintenance of that species at a favourable conservation status, the Member State concerned must refrain from authorizing such exploitation” (Case C-436/22, ASCEL, para. 72).
Even though these cases concerned national decisions, they revolve around the same autonomous concepts of EU law – “favourable conservation status” and the precautionary principle – that are also at the heart of the contested proposal for an amending directive. It is highly unlikely that the Court would depart from its own carefully established case law as to interpretation of these concepts. Indeed, the CJEU has already highlighted the relevance of the precautionary principle also with regard to Annex IV amendments (Case C-601/22, para. 39) which, as mentioned above, are subject to a particularly onerous procedural threshold and must relate to “technical and scientific progress”.
Hence, as astutely concluded by AG Ćapeta in the same case, “to comply with the precautionary principle, removal of a species from the protective annex could happen once their favourable conservation status is certain (that is to say, not a short-term fluctuation), and there would be reasonable evidence that the factors that caused it to have an unfavourable status no longer apply” (para. 55, emphasis added). If, on the contrary, conservation status is not demonstrably favourable, there would not be “good reason to start the procedure set out by Article 19” (id.).
Moreover, there are solid reasons to believe that the merits of downlisting really ought to be judged on a country-by-country basis. As confirmed in the same Austrian wolf ruling, the primary focus for conservation status assessments, at least in the context of derogations from strict protection, is “the level of the local and national territory of the Member State concerned” (Case C-601/22, para. 66). Indeed, exempting Austrian wolves from Annex IV was judged to be ill-founded also because “the conservation status of wolves in Austria is far from favourable” (Opinion AG Ćapeta, para. 55; also judgment, para. 45).
Incidentally, also under the Bern Convention, appendix amendments are expected to take place “in a coherent manner, based on best available science” (Recommendation No. 56, 1997).
Science ignored and (pre)caution to the wind
Against the background of these various requirements, a 2024 position statement of the Large Carnivore Initiative for Europe (LCIE), an influential specialist group of the International Union for the Conservation of Nature (IUCN), qualified the downlisting proposal as “premature and faulty”. It points to an incoherent use of scientific data on wolf population numbers and trends. Prior proposals to downlist wolves, by Switzerland, under the Bern Convention had been consistently opposed by the EU: in 2006, 2018, and as recent as 2022. On that last occasion, the EU position was as follows: “Based on current data, lowering the protection status of all wolf populations is not justified from a scientific and conservation point of view” (Council Decision 2022/2489). The data referred to are from a 2022 LCIE report which put the number of wolves in Europe at 19,400. To bolster its new position on wolf downlisting, the Commission had a new report drawn up in 2023 (by Blanco & Sundseth), but this came up with a figure that was only marginally higher, namely 20,300.
The EU proposal cites increased conflicts related in particular to livestock damages to justify downlisting. However, the evidence indicates that livestock losses to wolves have hardly changed of late and are still assessed as small, and the same applies to public safety risks. As stated in the ‘key findings’ of the Commission’s own (Blanco & Sundseth) report: “the overall impact of wolves on livestock in the EU is very small [and] no fatal wolf attacks on people have been recorded in Europe in the last 40 years.” Moreover, the strict protection regime of Annex IV already allows for the killing of wolves when necessary to prevent serious livestock damage or human safety risks.
It is also worth noting that in October 2024, following an NGO complaint, the European Ombudsman opened an inquiry into the way in which the European Commission carried out its data collection in the context of the wolf downlisting proposal (Case 1758/2024/FA). Among other things, the Ombudsman has asked the Commission to clarify on what scientific evidence it has based its statements on the alleged dangers posed by wolves, and why it has departed from its own Better Regulation Guidelines on stakeholder consultation.
As for precaution, the EU downlisting proposal is apparently not giving the benefit of the doubt to wolf conservation, but to the clamour of certain stakeholders for wolf control. Indeed, the LCIE statement expresses concern about the consequences of lowering the protection status of “a species like the wolf which is the subject of controversy and strong political disagreement in parts of its range.” It stresses that eventual downlisting should occur “only when supported by sound evidence and accompanied by a clear and coherent set of objectives, commitments and evaluations governing the subsequent period,” and in a manner whereby the “influence on the process of politicisation and lobbying is minimised.”
In light of the required focus on wolf populations at local and national levels, as confirmed by the CJEU in its recent case law, the LCIE appears to be correct in declaring that “the proposed generic downlisting of the wolf across the continent does not appear warranted.” Instead, “it may be that at some stage the downlisting of certain wolf populations is justified but not others.”
As regards the actual roots of the downgrading proposal, the LCIE makes the crucial observation that “the deeper social conflicts that appear to be the real drivers of the present discussions over wolf management (rather than livestock damages as such) are unlikely to be resolved by downlisting, as this will predictably please some stakeholders while upsetting others.”
In February this year, various NGOs brought an action against the Council and the Commission, to annul the aforementioned Council Decision 2024/2669 on wolf downlisting (Case T-634/24). Whereas the NGOs’ chances of success appear slim for reasons of admissibility, some of the substantive arguments they brought forward appear sound. These include allegations that the Council Decision was taken “without having adequate regard to the available scientific and technical data” and that it runs counter to the precautionary principle.
Downlisting under the Convention does not require downlisting under the Directive
Another potentially misleading statement in the Commission’s amendment proposal concerns the relationship between the Bern Convention and the Habitats Directive. After explaining the change in legal status of wolves under the Convention, the proposal asserts: “Following its entry into force and in order to transpose this change under the Bern Convention, it is necessary to amend the annexes of … the Habitats Directive by moving reference to the species from Annex IV of the Directive to Annex V” (emphasis added).
Amending Annexes IV and V is obviously “necessary” in the sense that downlisting is currently an objective of the EU legislature. However, it is erroneous to argue that the changed status of wolves under the Convention makes it “necessary” to downlist wolves under the Directive as well. As Article 12 of the Convention expressly provides, parties “may adopt stricter measures for the conservation of wild flora and fauna and their natural habitats than those provided under this Convention.” There are many examples of such stricter measures, both at EU and national levels. Another large carnivore, the Eurasian lynx, is a good example. For decades, this species has simultaneously had “protected” Appendix III status under the Convention and “strictly protected” Annex IV status under the Directive.
Incidentally, if and when the Commission has its way, and wolves across the EU indeed end up in Annex V of the Habitats Directive, the (lethal) wolf management flexibility gained may well be less than what proponents are hoping for. In a recent case on wolf hunting in Spain (where the Annex V regime applies to most wolves), the CJEU made clear that there are plenty of situations where the killing of wolves would be off-limits also under this regime (Case C-436/22). This is the case when wolf monitoring is substandard, when the population’s conservation status is unfavourable, and when uncertainty remains as to the conservation status or the effects of hunting or culling thereon.
The big picture – human-wildlife coexistence and triple solidarity
Context is (nearly) everything, and zooming out a little is often helpful. For hundreds of thousands of years, wolves lived – presumably more or less happily – all over Europe. This changed when modern humans and their livestock arrived on the scene. Increasingly, wolves came to be seen as ‘public enemy’. They were persecuted through massive wolf hunts, elaborate wolf traps, nets, snares, poison or spikes in meat, and leghold traps. Bounties for dead wolves were a staple feature of wildlife legislation for centuries. Eventually, in spite of its remarkable adaptability, the wolf joined the long list of large mammal species that were ousted from (most of) the continent by our ancestors.
In the course of the last century, however, a shift took place in European societies’ views of nature – including wolves and other predators. This shift was driven by increasing ecological understanding, awareness of the disastrous consequences of biodiversity loss for humanity, and recognition of the intrinsic value of wildlife. These scientific and ethical insights translated into global and European biodiversity strategies, in which unapologetic anthropocentrism was gradually substituted by visions of human-wildlife coexistence. The ensuing replacement of wolf bounties by strict legal protection has played a key part in the recent European wolf comeback.
A central concept in all of this is solidarity. Firstly, from a historical vantage point, it is difficult to deny that Homo sapiens has quite a bit to make up for to Canis lupus. Secondly, those who pay the biggest price for renewed coexistence with wolves, particularly livestock farmers, deserve help from society at large to ‘wolf-proof’ their businesses once again. Thirdly, solidarity is called for with the Global South. If poor rural people on the African continent and in India are able – and expected – to keep coexisting with the likes of elephants, hippos, lions, tigers, and crocodiles, then surely it is a small ask for rich Europeans to generously share the landscape with wolves, which are docile lambs by comparison (and from whom real lambs can be protected quite effectively by shepherds, dogs, electric fencing, and such).
A sign of the times
Against this backdrop, the campaign to strip wolves from their strict protection status is slightly bewildering. So are accompanying statements like this one from the President of the European Commission: “The concentration of wolf packs in some European regions has become a real danger for livestock and potentially also for humans. I urge local and national authorities to take action where necessary.” The big picture and the goal of coexistence seem lost from sight, and replaced with unfounded fearmongering rhetoric, echoing and fuelling vintage anti-wolf sentiments.
Real problems, and real solutions, tend to be complex. Yet, a growing trend in today’s political culture is for simplification to be rewarded and for ressentiment to be uncritically exploited. In the greater scheme of things, shooting a few (or a lot) more wolves will not solve anything. But as scapegoats and distractions from actual problems, wolves are simply too good to resist. Also for the European Commission, it seems. It is difficult not to see in its proposal for amending the Habitats Directive a politically motivated, conscious choice to sacrifice science, logic, ethics, and law, in order to appease those amongst the European populace who are, once more, howling for wolf blood.
Floor Fleurke is associate professor of European environmental law at Tilburg Law School.
Arie Trouwborst is professor of nature conservation law at Tilburg Law School, and extraordinary professor at the Faculty of Law of North-West University in South Africa.