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Comment on the Opinion by Advocate General Saugmandsgaard Øe in the Tapiola Case (C-674/17)

Jan Darpö

The “wolf issue” is hot all over Europe, not least in the Nordic countries. Due to pressure from farmers’ and hunters’ organisations, license hunts are performed on a large scale basis in Norway, Sweden and Finland. As the wolf is strictly protected under the Habitats Directive, hunts must have a legal basis in a derogation decision according to Article 16(1). Many of the hunting decisions issued by the authorities under this provision have been challenged in the national courts by the engo community, but so far with little success. However, in late 2017, the Finnish organisation Tapiola brought a case all the way to the Supreme Administrative Court, which requested a preliminary ruling by the cjeu on whether such a license hunt is in line with the Directive. The Advocate General’s opinion in this case (C-674/17) came in May. This article is a comment to that opinion.

Stefan Möckel

For decades, German agriculture has been responsible for high nitrogen inputs into the environment. Recent reductions in nitrogen surpluses that were originally caused by fertilization are not sufficient to meet European requirements. In the case of ammonia emissions, there has even been an upward trend despite contradicting national emission targets due to the expansion of animal husbandry. Both developments are not surprising, since German agricultural policy has for years been unable to adopt stricter measures that would reduce nitrogen surpluses and ammonia emissions and modernise existing regulatory concepts in line with European requirements. This paper presents the state of current emissions in section 1. Subsequently, sections 2 to 4 present the regulatory concepts for livestock facilities, agricultural fertilisation as well as the protection of Natura 2000 areas from agricultural intervention and identify their shortcomings in the light of recent rulings by the European Court of Justice. The paper offers a summary assessment that includes the most important areas for improvement.

Louis J. Kotzé

This paper argues that international environmental law (iel) is not sufficiently ambitious to confront the Anthropocene’s socio-ecological crisis. The critique specifically focuses on iel’s lack of ambitious and “unmentionable” ecological norms such as rights of nature, Earth system integrity, and ecological sustainability that are not yet considered to be part of the corpus of iel, but that arguably should be in light of the prevailing and ever-deepening socio-ecological crisis. Assuming that the recent Global Pact for the Environment initiative and its accompanying United Nations-mandated report that assesses possible gaps in iel are indicative of the type of reforms we might expect of iel now and in future, the paper determines if and the extent to which the Global Pact initiative embraces ambitious norms and addresses iel’s “unmentionable” normative gaps. A secondary, but related, objective of the paper is to briefly respond to the recent view that any radical critique of the Global Pact initiative is either unfounded, unwarranted or undesirable.

Anna Christiernsson

As with many biodiversity laws, the Habitats Directive allows for exemptions. While it can be argued that flexibility is necessary for handling dynamic ecosystems, the associated lack of legal clarity on the room to derogate can risk impairing both the effectiveness and the uniform application of EU-law. This study aims at clarifying the conditions to derogate from the strict protection of species under Article 16(1)(e), a provision which has been interpreted to provide a legal basis for hunting species with a favourable conservation status in several Member States. One such controversial case is the hunting of brown bears in Sweden. The Swedish brown bear management will thus be used as an illustrative example to discuss Member States’ discretion to derogate under Article 16(1)(e).

Wolfgang Köck

In Germany, the wolf population develops in a very dynamic manner. As a result, politics and society increasingly worry about human safety and whether the return of the wolf can be kept compatible with pasture grazing. Plans by the federal states (Länder) for wolf management serve both to prepare society for the return of wolves and to deal with likely emerging conflicts. In exceptional cases, conflict management may include the ‘removal’ of wolves, i.e. the killing of individual ‘problem-wolves’. This paper analyses the legal prerequisites for the removal of wolves; it also addresses the conditions that must be met for wolf management to be placed under a new legal framework – beyond the exemption regime under species protection law. In this context, the ‘favourable conservation status’ of wolves plays a key role.

Elena Sherstoboeva

This paper explores, mainly from a legal perspective, the extent to which Russian regulation of traditional TV and online audiovisual media policies has been consistent with Council of Europe (hereinafter CoE) standards. The study compares the CoE and Russian approaches to specific aspects of audiovisual regulation including licensing, media ownership, public service media, digitalization, and national production. The paper first studies the CoE perspective through examining its conventional provisions related to audiovisual media regulation, the case law of the European Court of Human Rights as well as CoE non-binding documents. The study proceeds to consider Russian national law governing audiovisual media and the practice of Russian courts of general jurisdiction on broadcast licensing. The paper suggests that Russian audiovisual regulation is insufficiently compatible with CoE standards and mainly seeks to maintain excessive governmental control over the audiovisual sector in a digital environment.

Maksim Karliuk

The Eurasian Economic Union (‘eaeu’) – an international organization for regional economic integration in post-Soviet space – has a judicial body aimed at ensuring uniform application of law. This article argues that the eaeu Court will struggle in achieving its aim as there are issues of independence, it has diminished powers, and limits have been imposed on its interpretative practices, at least as compared to its predecessor. This may lead to problems in respecting the rule of law and ‘dis-integrates’ the judiciary in the sense of a common system involving national courts. At the same time, it is also argued that, although the Court’s procedural and substantive powers have been limited, the attempt to limit certain interpretative powers of the Court can hardly result in meaningful consequences for the development of law.

Grigory Vaypan

This contribution discusses the recent Dubovets case before both the European Court of Human Rights and the Russian Constitutional Court, and its implications for the changing design of Russian property law as increasingly shaped by international human rights law and good governance principles. Communicated in December 2016, the application in Dubovets v. Russia continues the line of the European Court’s cases against Russia on the protection of good faith private owners of real estate against property claims by the government. Prompted by this case law, the Russian Constitutional Court in its Judgment of 22 June 2017 No 16-P struck down Article 302 of the Russian Civil Code as unconstitutional insofar as it entitled the government to reclaim possession of state property that had been previously alienated due to the government’s own negligence. This judgment manifests the increasing interdependence between private and public law – of classical property law, on the one hand, and international human rights law and good governance principles, on the other hand. It also contributes to ongoing evolution in the understanding of the state’s property rights in Russia: from the superior status of public property in Soviet times – to formal equality between public and private property rights in the landmark legal instruments of the 1990s – and now to the growing need for special protection of individual property rights vis-à-vis the state, in light of the latter’s double role as both the largest owner and the (quite unrestrained) regulator.