The Update of the Guidance Document

The Commission is about to update the Guidance document on the strict protection of animal species of Community interest under the Habitats Directive 92/43/EEC and some of the member states are “alarmed” as a result. What is about to change?

Almost nothing.

The Councils Directive 92/43/EEC has been valid since May 1992. It was signed by the member states, and hasn’t changed at all since all these years. The first Guidance document was published in 2007 and the purpose of it is, as the name suggests, to guide. The purpose is to give instructions of sufficient management to obtain favorable conservation status of habitats and species. So, it’s a kind of a toolbox, or, if the guidance is followed, an insurance so as not to face infringement procedures.

The Guidance document is not a judicial document, the Directive is. The Guidance document follows the line of the Directive, not the other way around. The European Court of Justice leans on the Directive and the judgements of the Court form the guidance. So, the particular Guidance document does not give instructions to the ECJ, the Directive does.

According to the Directive, Member states do have liberty to choose their management of large carnivores. Only deliberate killing of species is forbidden but there are also possibilities for derogations in article 16. Strict protection is not strict if any kind of killing is allowed.

So, the directive is not about to change. It will remain the same as it has been since 1992. If the implementation in some member states has been inadequate, then who’s to blame? The Union, or the Directive..? Or perhaps it’s high time to look into the mirror?