"Who will lead them into green pastures?
An investigation into the applicability of European legislation on the (re) introduction of large herbivores
‘Wie zal hen geleiden naar grazige weiden?' By C.W. Oudenaarden, Utrecht: Wewir 2007, ISBN: 978-90-5213-145-0
Willemijn Oudenaarden studied in Law and History at the University of Utrecht, the Netherlands. Majoring in State Administrative Law and she graduated cum laude in April 2007. For her masters thesis she wrote for a paper for the LHF nonprofit scientific organization - Wetenschapswinkel Rechten - on the question of which European regulations govern the reintroduction of large herbivores into conservation areas.
This report (in Dutch with English summary) has been published by Kennispunt Recht, Economie, Bestuur en Organisatie van de Universiteit Utrecht (Knowledge Point of Law, Economics and Governance of Utrecht University).
English summary.
The Large Herbivore Foundation (LHF) is a foundation that aims to introduce and reintroduce native animals species or their ecological replacements into European nature conservation areas. The LHF has experienced that there is little clarity regarding the regulations applicable to introduction en reintroduction of animals. For this reason, this research study aims to obtain clear insight into the regulations that apply and will also detect any problems. This research study focuses on European regulations and is illustrated with examples from the Netherlands where possible. It divides the process of introduction or reintroduction into three phases: the transport phase, the phase in which the animals are actually released into the wild, and the phase following the release. The various types of regulations are divided into three major legal fields: veterinary regulations, animal welfare regulations and nature conservation regulations.
Phase 1: Transport
In the transport phase, emphasis is on the veterinary regulations. The prevention and combat of animal diseases take priority. The transport of animals as part of reintroduction is not expressly regulated by law. It is therefore striking that in practice there is a difference between the regulations that are applied to the transport of dedomesticated animals fall under the same veterinary rules as the rules that are applied to the transport of production animals. The veterinary requirements set for the transport of the European Bison, however, are very unclear. Not just the LHF, but also national governments have found that there is a lack of clarity on this point.
The LHF does not aim to make a profit in its transport of large herbivore for reintroduction, which means that the European Transport Regulation does not apply. This phase therefore includes a void regarding the protection of animal welfare at a European level, meaning that the LHF has to rely on various national animal welfare provisions. This is not a desirable situation and causes a lack of clarity, since animal transport for reintroduction is most always a cross-border activity. For this reason, options should be explored to fill this void at a European level.
Phase 2: Releasing the animals
During the phase in which the large herbivores are actually released into the wild, no specific European veterinary regulations or animal welfare regulations apply. The emphasis in this phase is on nature conservation regulations. One of the principal elements of European nature policy is the Habitat Directive. The Habitat Directive provides that certain animal species, such as the European bison, should be protected. Member States are to designate all areas where the European bison lives or is properly reintroduced as Natura2000 sites. Natura2000 sites are also protected under the Habitat Directive. A requirement for large herbivores that are not protected under the Habitat Directive is that they, and therefore their reintroduction, must not harm the protected areas or the flora and fauna present there. Contrary to the first phase, this phase places much responsibility with national governments.
Phase 3: Following the release
It is rather difficult to indicate which legal field mainly apllies after the release of the animals into the wild. In this phase, the regular veterinary regulations usually also apply to large herbivores living in nature conservation areas. There are exceptions, however, for example where it concerns the combat of animal diseases and identification. Nature conservation regulations may play a role in the protection of the areas where the animals live. In addition, certain animal species, such as the European bison, are protected under nature conservation regulations. For this phase, the protection of animal welfare is not specifically provided for at a European level. Still, animal welfare is very important in this phase. The discussion on mortality rates in winter in the Dutch lake area Oostvaardersplassen, for example, mainly centred around the subject of animal welfare in this phase. All in all, in this phase the three legal fields that are part of this study each have a more or less equivalent role.
Main conclusions:
The main conclsuions are:
- In each phase, the focus lies on a different legal field.
- The regulations are unclear and contradictory, and the are some regulatory voids.
- Terms used may have various meanings.
- The regulations do not include dedomesticated animals as a separate category, whereas they do regard domesticated animals and wild animals as separate categories.
- In practice, dedomesticated large herbivores are considered to be ‘animals for use' in European veterinary regulations. The reason for this is unclear.The European bison is not labelled as an ‘animal for use'. This means that it is unclear which veterinary regulations govern the reintroduction of the European bison.
- When they are reintroduced, wild animals such as the European bison fall under different legal provisions than dedomesticated animals. Legally speaking, however, the distinction made here between wild and dedomesticated is not very important, because the animals serve the same ‘purpose': after their reintroduction they will live in an nature conservation area.
- There is a lack of clarity regarding the extent to which the provisions protecting certain species in the Habitat Directive apply to protected anial species that are born as a domestic animal or in captivity and that were not taken from the wild.
- The LHF does not aim to make a profit in its reintroduction of large herbivores, which means that the European Transport Regulation does not apply to the transport of large herbivores. As a result, there is a legal void in the protection of animal welfare during actual transport.
• The EU cannot formulate any rules that only cover the protection of animal welfare, because the protection of animal welfare is not one of the EU's objectives. The current EU Treaty does not provide the EU with any authority to draw up requirements purely for animal welfare. A solution must therefore be found to fill the void concerning animal welfare.
Options to solve
These are some options to solve part of the difficulties and lack of clarity described above:
- Recognise that the regulations are sometimes contradictory, include legal voids and are insufficiently clear.
- Ensure that terms are clear at a European level. This may be realized at EU level, but if there are no European regulations, the Member States could take care of this together.
- Formulate guidelines for the introduction and reintroduction of large herbivores in Europe. The council of Europe could draw up these guidelines.
- Find ways to fill the voids now existing at a European level with respect to the protection of animal welfare.
- Create a new category in legislation, e.g. ‘nature animals', and stipulate rules for this category. The same thing was done for ‘animals for use' . This way, where possible, dedomesticated animals and wild animals will fall under the same regulations in the process of introduction or reintroduction.
- Request the EU to provide clarity regarding the applicability of the Habitat Directive to protected animals that were born in captivity and were not taken from the wild.
In short, in the process of the introduction or reintroduction of large herbivores, it is currently necessary to move from one European legal field to the other. Recognising that the three different legal fields that apply to introduction en reintroduction are interdependent and mutually influential will be the first step towards solving these difficulties and simplifying the legal aspects of the LHF's activities.