Responsibility of States for Damage caused by Protected Animal Species : Study of the French case

According to the international movement initiated by the Stockholm Summit of 1972 and the Convention on International Trade in Endangered Species of wild fauna and flora threatened with extinction of 3 March 1973 [1], Europe has embarked on the path of protection of nature from the late 1970s should be mentioned here Europe in its diversity, as if the pulse was first given by the Council of Europe with the Berne Convention of September 19, 1979, this first initiative was strengthened as part of the European Union by the two founding documents of the Natura 2000 network, birds directives [2] and habitats. [3] Each of these binding standards [4] has the effect of imposing a regime of protection for a range of animal species whose conservation status has expressed concern at the European level. This plan mainly involves the prohibition of any measure of destruction, capture or deliberate disturbance of animal species. [5]

However, this will ensure the preservation of threatened wildlife is not without some difficulties. In addition she has upset some human activities often led to their poor state of conservation (hunting and commercialization of products derived from these species, collections or other uses of wildlife for entertainment, scientific research …) this policy is reflected in certain cases by a revolution in attitudes since now the public interest is declared the protection of species of destruction because of their nuisance to humans had also, at other times, was considered of general interest … as an example we can mention the case of vipers whose destruction has been the subject of bonus payments by public authorities, device originally a famous decision of administrative law [6]. However, these reptiles are now benefiting from various forms of protection on the French territory. [7] But the most symptomatic and now causing stronger controversial example is undoubtedly the wolf (Canis lupus), now a protected species in Europe and therefore in France, but an Act of August 3, 1882 organized its mass destruction, with the distribution of premiums for each wolf eliminated, political efficacy which had been such that the species has disappeared from France in 1937 will need more than half a century to begin to repopulate the hexagon.

Thus, if this shift results in a return of biodiversity, it is sometimes synonymous with the resurgence of conflicts due to the impact that certain animal species on agricultural and livestock activities, he s ‘whether, for example, wolf predation on flocks of sheep or birds on fish farms or crops … But in the case of protected species, farmers can not, on their own initiative, implement the direct and spontaneous destruction of wildlife that affect their operations. This fact will lead to hostility towards these protection policies and events generate action by the government to balance economic and conservation of wildlife activities. This balance is based on two complementary devices consisting firstly to reduce the protection status by using exceptions (I) and secondly to promote reparations for damage caused by wildlife (II).

I – A protection status mitigated by the use of waivers

European instruments for the protection of species of wildlife have integrated the difficulties there might be to ensure strict conservation of an animal species. For this, the use of derogations provided. Thus, Article 9 § 1 of the Berne Convention allows states to derogate from the protection status of a species to respond to certain situations among which are preventing “significant damage to crops, livestock, forests, fisheries, water and other forms of ownership “provisions included in the Natura 2000 [8] guidelines.

However, such exceptions may not have the effect of undermining the protected status. Indeed implementation presupposes that either struck a balance between the preservation of agricultural activities and wildlife protection (A) and the utility of using such measures can be demonstrated (B).

A – The necessary balance between preservation of agricultural activities and livestock protection

France being faced since the early 1990s to wolf predation on sheep population, the State, while recognizing the protected Canis lupus [9] species status, chose to use the exemptions provided by the Habitats Directive by allowing, under certain conditions, shooting wolves in territories where predation is recognized. The device is based on two levels: a general scheme is set nationally by ministerial order [10] while local permits are issued to farmers by departmental prefects.

In this context, having to decide on the modalities of withdrawal authorization of wolves, the highest administrative court was conducted to assess compliance with the criteria established by the Habitats Directive. For the judge, it will be first to question the validity of the operative derogations, that is to say, check for damage sufficient to justify such a waiver. In a 2005 ruling the State Council [11] has been faced with the difficulty of assessing the extent of damage to flocks of sheep. If the number of sheep killed by wolves in 2003 might seem large (more than 2,000 victims), it represented only 0.5% of the population of the area concerned and 10% of accidental losses of sheep [12]. However, the judge believes that this represents a serious enough injury to justify withdrawals. In another judgment in 2008, the State Council, based on the finding of a steady increase in attacks since 2003, will see even a “large scale disturbance given to pastoral activities in the relevant departments” [13 ]. On this first aspect the EU judge appears rather less demanding as illustrated by the case decided in 2007 on the Finnish wolves. [14] Seized by the Commission in proceedings of failure, the Court had to decide on the issuance of licenses to hunt every year a few wolves. Or the Courts of the Union merely to point out that Article 16 of the Habitats Directive provides the possibility to derogate from the protection scheme to prevent serious damage to field crops and livestock and concluded that the text “does not require the occurrence of significant damage as a prerequisite for the adoption of derogations“, the existence of a simple sufficient risk to justify such measures. [15]

However, and this is what counts, is it still necessary that these derogations will not have the effect of calling into question the future of the species in an area covered by the plan of protection. As such, the use of 2005 held by the State Council, the number of wolves that can be taken could appear low since the disputed arrested while limiting it to four individuals. However, this figure should be seen in relation to the total population of wolves on the French territory, which at the time was about forty individuals. The levy provided therefore be made not less than one tenth of the population numbers also extremely limited. However, the judge relied on the finding of a steady growth of this workforce since 1992 to estimate that such samples were not likely to affect the future of the species in France. [16]

Again, the parallel with the Finnish case appears interesting. Here, the Court found that the wolf was in danger of extinction in Finland due to the small number of individuals capable of reproduction, twenty couples, which led her to believe that the criterion of FCS was not met. At this early stage of analysis one would think that the European Court raises much stricter than the French court to the extent it calls “a state of unfavorable conservation” a population nearly five times important conditions as in France . However, and this is where the two judges converge again in their assessment, even though Article 16 § 1 of the habitats directive establishes the necessary precondition to any exemption that the state of conservation of the population the species in the area concerned is favorable, the Court finds here even if this criterion is not met for exemptions protection are possible if they are not likely to aggravate the state of conservation or prevent the recovery of the population in a favorable conservation status. Indeed, the Court emphasized that it “can not be excluded that the slaughter of a limited number of specimens is no impact on maintaining a favorable conservation status of the wolf population in Finland, which would mean that in this case “such exemption would therefore neutral in the species concerned”. [17] In other words the Court, rather than taking into account the weakness of the initial state of the population of the target species, prefers to focus on the potential impact of such measures on waiver changes in the workforce. [18] By following a similar reasoning that the EC had in turn considered legal permission to take a tenth of the population of wolves in France while it was still depressed.

B – The essential recognition of the usefulness of derogations

It is not sufficient to establish the existence of a risk of damage to economic activities and to ensure the neutral impact of harvesting on the maintenance of an animal species to justify the use of derogatory methods. It is also necessary that these measures are considered useful in relation to the objective pursued. But as such, the utility must first be assessed in the light of the existence of alternative methods. A derogation may indeed be issued in case of failure or inability to implement such methods. This is an essential criterion to the ECJ reiterated the importance repeatedly. For example, in Commission against Italy [19], the Court condemned Italy for issuing a permit to hunt protected bird species in order to limit their impact on agriculture without basing acts such authorizations justify the absence of alternative measures. In this case, the Court states that before any measure of destruction, should be considered the feasibility of using means of protection. It is also necessary for such a requirement fully responds to the aim of protecting species, these defenses are valued at fair value. However, as such, the position of the State Council is debatable. The latter took the view that “if the same texts also subordinate the destruction of wolves on the condition that there is no other satisfactory solution to prevent serious damage to livestock, it is clear from the evidence that alternative possible or to protect the herds, such as security and the night the combination or to keep wolves as scaring and diversion to less sensitive areas, have already been implemented, to varying degrees, by the powers public and does not ensure a satisfactory balance between public interests, in the social and economic one hand, protection of the environment on the other “. [20] However, here the challenge is in the implementation of these alternative measures to “varying degrees”. This diversity of degrees some problems because it does not appear that the judge here seeks to assess the quality of existing devices, even though they receive public funding to merely find the implementation of certain devices. However, if the guards are not widespread, they do affect some of the herds, it is not clear how important could be avoided predation by wolves! It seems like common sense that from the moment the protection measures are implemented to varying degrees we can not consider that the criterion of alternatives is completed. However, in the aforementioned judgment of 2008, the State Council did not hesitate to consider that “these protections do not allow themselves to ensure a satisfactory balance between public interests, social legislation and economic one hand, protection of the environment on the other “. [21]

Finally, assuming that the use of such alternatives is actually insufficient, shooting a protected species that can not be justified from the time such shots actually meet the goal of protecting cattle. Here it is useful even shots that must be assessed. But on this issue the positions of the Community Courts and the State Council reflect a difference of opinion. Indeed, it is mainly here that the Community Court had sentenced Finland about permissions wolf hunting in Finland at the lack of evidence to prove the effectiveness of such measures, s’ pressing the difficulty targeting wolves that are causing the attacks and especially the great uncertainty about the impact of such levies on a pack of wolves. Thus, even if its impact on the population is neutral, hunting can not be allowed if it is not demonstrated that it will limit effectively the predations. Conversely, the State Council in 2005 had rejected the complainants stating that they did not provide evidence that such shots are ineffective. Yet such an extent that when a predator population is then reduced to a few dozen individuals, has every reason to raise real questions about the real purpose of these derogations. Indeed, one can not “help but feel some perplexity that provision of government appears to be a half-measure. We tend to think it’s too much or not enough “[22], to the extent that it is hard to see how the destruction of four wolves would stop attacks against the herd! This half-measure rests clearly on a very unsatisfactory compromise between the need not to undermine the protected status while seeking to satisfy opponents of the wolf instead of organizing the conditions for sustainable cohabitation.

The position of the administrative judge could be defensible if it was seen as a temporary solution. The arrival of the wolf in France, officially confirmed November 5, 1992, will assume indeed for farmers time to adapt to meet this new requirement. With this in mind, one would assume that the choice to slow the growth of the wolf population is motivated by the desire to preserve the herds that time measures adapted to the new situation are established. However, he has been nothing insofar twenty years after the return of the canine in France, the last wolf plan reflects the contrary logic tougher measures against animals by increasing options authorization destruction [23].

This judicial solution unfavorable to the predator is still attenuated when the State Council takes into account the fact that such permits may be issued fire in heart of national parks and nature reserves. So the wolf situation in France is variable: in areas where nature is strictly protected, farm activities must accommodate new constraints and the farmer can not expect government the right to remove animals that affect their breeding activity. Outside these areas, the social and economic interests of farmers tends to take over and the judge simply checks that the principles established by the Habitats Directive are respected globally without ensuring the effectiveness of protective devices herds. In other words, outside the sanctuary areas, the objective of general interest in protecting wildlife turns defended in an extremely precarious, reinforced by the scheme applicable in France sentiment.

II – Victim compensation for damage caused by wildlife

The second solution that can meet the demands of operators who suffer damage caused by wildlife will be to use the compensation of victims. This scheme was implemented by the state in a systematic way for damage caused by large predators (A) and extended under certain conditions by the judge for damage caused by other species (B).

A – Systematic compensation for damage in case of damage caused by large predators

Under certain assumptions, measures of systematic compensation were granted to victims of damage caused by wildlife. This is the choice that was made in France for attacks herds, mainly sheep, by large predators (bears, lynx and wolf). Thus, a Compensation Commission bear damage had been established in 1959, funded initially by an insurance company underwritten by the Hunters Association and the Board of mountain hunting, that plan has by the state since 1968, except for the period between 1979 and 1982 when the management reported to the Supreme Council of the hunt. [24] The problem posed by the lynx and the wolf is more recent and was able to feed the existing mechanism for the bear. On lynx, his return to France was the result of a reintroduction program. In fact, the finding of some predation on livestock has led to the implementation of a compensation scheme supported by the Ministry of Environment from the findings of ONCFS [25].

If the wolf is more interesting, inasmuch as there was no building program or reintroduction of a species, but where there has been a return of a natural predator that had completely disappeared from french territory for over half a century. Moreover, its impact on herd is much larger than the two above species. In fact, farmers are faced with constraints they could not anticipate the disappearance of wolves who ended most of the protection of animals. To address this situation, the State responded twice, by a systematic compensation attacks on domestic livestock due to wolf [26] scheme and the payment of aid in favor of voluntary farmers to implement protection devices [27]. However, the two systems are completely independent of one another, meaning that the Compensation for loss due to attacks is not subject to the prior obligation to the breeder to have protected his flock.

Such a device may be assessed in two ways. For the European Commission, in Commission v / Finland, the system of compensation falls within the range of alternative measures to avoid killing a wolf. Indeed, for the Commission, “when viewed as likely that a wolf causes significant damage, they could generally be avoided except by pre-emptive slaughter. The use of repellents, perfumes, electrical or other fences, confinement livestock or dogs during the night or compensation for damage, could be considered “[28]. However the Commission appears here establish a hierarchy of measures, compensation appearing as a possible last resort. It appears logical to focus on prevention, the system of compensation, which should lead to a hearing under the compensation scheme subject to conditions.

But that’s not what comes out of the compensation regime in France since it provides that any damage to herds that are demonstrated to be attributable to a large predator (bear, wolf and lynx) entitled to reimbursement the state of the animal or animals killed. Such a solution that could let the a priori are very favorable for farmers nevertheless poses a double problem. The first is that the state, in an accounting sense to limit the number of cases to indemnify, naturally becomes himself tried to minimize the wolf population. The second problem relates to the philosophy of compensation. Assuming the prerequisite would be established to protect the herd, the state would take care of the constraints that the farmer can not cope. Conversely, systematic compensation suggests that the farmer does not have to bear the constraints of its natural environment, as if the presence of wildlife was so abnormal and that the breeder had an interest in do business in an environment without constraints, that is to say, devoid of any predator. Such an approach goes against the spirit of Article L 110-1 of the environment from which it appears that the protection of animals is of general interest. If the public interest must be reconciled with other public interests including working conditions of farmers belong, it also assumes that these same farmers adapt their activity, which seems to ignore the compensation scheme in France.

But on this point, the response of the administrative judge for other types of damage appears to be based on a sound logic.

B – Responsibility for abnormal hazards imposed by Justice

Apart from cases of compensation granted by the State, victims of damage caused by wildlife have sought redress in court. Initially, it was denied such compensation. So, about an action brought against the State for damage caused to paddy fields by flamingos, the State Council inferred from Article 1 of the Law of 10 July 1976 on the protection of Nature [29] that “having regard to the object in the light of which the above legislation and the various texts implementing them were enacted in the public interest, the legislature intended to exclude liability of the State because of the consequences that these texts may include “[30]. In another case, about the damage done to his farm by concentrations of cranes, the EC held that “the provisions cited above (for the protection of the bird) did not prevent the applicant to guard against the depredations of cranes during migration “[31].

The judge has since evolved into position by standing on the grounds of strict liability of State made ​​laws to consider that “the harm resulting from the proliferation of wild animals belonging to species whose destruction was banned (…) must be compensated by the state when exceeding the uncertainties inherent in the business in question, it is of a serious and special and can not therefore be regarded as a burden normally interested parties “. [32] The administrative judge did not however widespread the systematic compensation plan established by the State for damage caused by large predators to the extent that this jurisprudential solution is in response to specific cases where the farmer is faced with damage that will be considered beyond the usual hazards. Thus, the highest administrative court first requires that the wrong is a serious and special character. This is the ability to prove a breach of equality before public burdens due to a particularly high exposure to wildlife, and provided that the exhibition was not previously known, subject to see oppose the exception of risk accepted. In other words, the judge considers that any farming naturally sustains damage. This is an inherent in the exercise of the profession normal hazard and thus remains the responsibility of the operator. It is only to the extent that such damage, taking account of specific local circumstances, are of excessive, that the applicant may obtain redress. So the judge will not hesitate to distinguish what is the normal random borne by the operator of the abnormal hazard compensable [33] and partially or totally deviate compensation in case of claims the victim. [34]

The coexistence of both compensation schemes tend ultimately to create a form of discrimination when it will be harder for the farmer cormorant victim to obtain compensation for the sheep farmer whose herd has been attacked by a wolf or a bear … Also, to the extent that a systematic state compensation for any damage caused by wildlife is physically and economically impossible, it would be wise to establish a general system that can combine support natural hazards by the operator himself could agree if any insurance, and the exceptional state compensation when damages are considered beyond the normal hazards. It would thus establish a more balanced between protecting wildlife and safeguarding the economic and social interests of farmers compromise.

[1] Older treaties have been adopted in this area, like the Paris Convention of 19 March 1902 on the protection of birds useful to agriculture, the London Convention of 8 November 1933 on the conservation of fauna and flora in their natural state or to the International Convention for the Protection of Birds adopted in Paris on October 18th 1950, but due to their limited purpose or low membership numbers, these conventions had a relatively limited effect.

[2] Directive 79/409 / EEC of 02.04.1979 on the conservation of wild birds, replaced by Directive 2009/147 / EC of the Parliament and of the Council of 30 November 2009.

[3] Directive 92/43 / EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and wild flora.

[4] The effects of this agreement are nevertheless limited by domestic law in the sense that I judge considers that “the provisions of this Convention only create obligations between States Parties to the Convention and do not produce direct effects in the domestic system “, December 8, 2000 CE, Common Breil-sur-Roya, Lebon p. 581; AJDA 2001, p. 775 notes JM February.

[5] Article 6 of the Berne Convention and provides that “will in particular be prohibited for these species: a) all forms of deliberate capture and keeping and deliberate killing; b) the deliberate damage to or destruction of breeding sites or resting places; c) deliberate disturbance of wild fauna, particularly during the period of breeding, rearing and hibernation, insofar as disturbance would be significant having regard to the objectives of this Convention; d) the deliberate destruction or taking of eggs from the wild or keeping even if empty; e) the possession of and internal trade in these animals, alive or dead, including stuffed animals and any part or product, readily recognizable from the animal, where this would contribute to the effectiveness the provisions of this Article. “

[6] CE February 6, 1903, Burrow, Reports Lebon, p. 94, concl. Romieu.

[7] Decree of 19 November 2007 establishing the lists of amphibians and reptiles protected throughout the territory and how they protect French Official Gazette No. 0293 of 18 December 2007, text 6.

[8] Article 16 § 1 of the Habitats Directive and Article 9 § 1 of the Birds Directive.

[9] In a decision of 10 October 1996, the wolf is registered in the list of my protected mammals on the entire national territory in Article 3b of the decree dated April 17, 1981

[10] Arrêté interministériel du 15 mai 2013 fixant les conditions et limites dans lesquelles des dérogations aux interdictions de destruction peuvent être accordées par les préfets concernant le loup (Canis lupus), JORF n°0121 du 28 mai 2013 page 8745, texte n° 15.

[11] CE, 20/04/2005, ASPAS, (Lebon p. 1026, AJDA 2005 p. 1398, note JM Pontier). Confirmant cette position, on peut voir aussi CE, 26 avr. 2006, Assoc. Ferus, (Juris-Data n° 2006-070065, Environnement n° 6, Juin 2006, comm. 66 Pascal Trouilly) ; CE, 13 juill. 2006, Féd. dptale ovine Hautes-Alpes, (Juris-Data n° 2006-070570, Droit rural n° 346, Octobre 2006, p. 279) ; CE, 26 avr. 2006, n° 274339, Assoc. pour la protection des animaux sauvages, (Juris-Data n° 2006-070126, Droit Administratif n° 7, Juillet 2006, Comm. Jean-Marc Février) ; CE, 4/02/2008, ASPAS, (JurisData n° 2008-073106, Droit rural n°362, avril 2008, p74, Environnement n° 3, Mars 2008, p. 48, note Pascal Trouilly).

[12] Le Commissaire de gouvernement note que la population ovine dans la zone concernée par les autorisations de tir est d’environ 452 000 têtes et, en 2003, 2 177 ovins ont été tués par des loups, alors que le total des morts accidentelles d’ovins représentent chaque année environ 22 000 bêtes.

[13] CE, 4/02/2008, ASPAS, (JurisData n° 2008-073106, Droit rural n°362, avril 2008, p74, Environnement n° 3, Mars 2008, p. 48, note Pascal Trouilly).

[14] CJCE, 14/06/2007, Commission des Communautés européennes c/ République de Finlande affaire C‑342/05.

[15] Ibidem, § 40.

[16] Cette tendance est confirmée puisque le nombre de prélèvements de loups autorisés pour la saison 2014-2015 s’élève à 24 individus pour une population d’environ 200 animaux. Arrêté du 30 juin 2014 fixant le nombre maximum de spécimens de loups (Canis lupus) dont la destruction pourra être autorisée pour la période 2014-2015, JORF n°0153 du 4 juillet 2014 page 11054, texte n° 8.

[17] Ibidem, § 29.

[18] La CJCE note que « il n’est pas contesté que, pendant cette même période, le nombre total des loups présents sur le territoire finlandais est passé d’une fourchette de 110 à 130 spécimens à une fourchette de 185 à 200 spécimens ».

[19] CJUE, 11/11/2010, Commission c/ République Italienne, affaire C‑164/09.

[20] CE, 20/04/2005, ASPAS, précité.

[21] CE, 4/02/2008, ASPAS, précité.

[22] Jean-Marie Pontier, « L’homme est-il un loup pour le loup ? », AJDA 2005 p. 1398.

[23] Plan d’action national loup, adopté pour la période 2013-2017, paru officiellement le 16 mai 2013. Source : Le loup en France, site officiel du Ministère de l’écologie, du développement durable et de l’énergie, http://www.loup.developpement-durable.gouv.fr/.

[24] Philippe Landel, Aspects juridiques de la conservation de l’ours brun en France, 2002, Les cahiers du Crideau n°4, PULIM, p. 137-141.

[25] Nathalie Lacour, Les politiques publiques de protection du lynx en France, in R. Rosoux, M de Bellefroid, J Baillon et A Moreau (coords), « Lynx… le grand retour ? », Paris, 2011, Publications scientifiques du Museum national d’Histoire Naturel, pp. 95-99.

[26] Voir notamment Ministère de l’écologie, du développement durable, des transports et du logement, Circulaire du 27 juillet 2011 relative à l’indemnisation des dommages causés par le loup aux troupeaux domestiques.

[27] Articles D 114-11 à D 114-20 du Code rural et de la pêche maritime et Arrêté du 19 juin 2009 modifié par l’arrêté du 23 septembre 2011 relatif à l’opération de protection de l’environnement dans les espaces ruraux portant sur la protection des troupeaux contre la prédation.

[28] « En effet, lorsqu’il est envisagé comme fort probable qu’un loup provoque des dommages importants, ces derniers pourraient généralement être évités autrement que par l’abattage préventif. L’utilisation de répulsifs, de parfums, de clôtures électriques ou autres, l’enfermement du bétail ou des chiens durant la nuit, voire l’indemnisation des dommages occasionnés, pourraient être envisagés », Affaire C 342/05, précit., § 13.

[29] Loi n° 76-629 du 10 juillet 1976 relative à la protection de la nature.

[30] CE, 21 janv. 1998, Ministre de l’env. c/ Plan, JurisData n° 1998-050001, D. 2000, p. 255, obs. P. Bon et D. de Béchillon ; Dr. adm. 1998, n° 137, note M. Paillet, p. 26, JCP G 1998, II, 10164, note J. de Malafosse.

[31] CE, 29 juill. 1994, Le Boeuf, n° 115527.

[32] CE, 30 juillet 2003, Association pour le développement de l’aquaculture en région Centre et autres, (AJDA 2003, p. 1815, chron. F. Donnat et D. Casas ; AJDA 2004 p 1941, note Clotilde Deffigier ; RFDA 2004, p. 144 et s., concl F. Lamy, notes P. Bon et D. Pouyaud ; D. 2003, Jur. p. 2527, note C. Guillard ; JCP 2003, n° 1896, note C. Broyelle).

[33] CE, 1er février 2012, M. Bizouerne, n° 347205, Rev. Jurisp. Alyoda (www.alyoda.fr), 2011, n° 3, concl. C. Schmerber.

[34] Ainsi, une exonération partielle de la responsabilité de l’Etat a été reconnue parce que la victime, un pisciculteur, n’avait pas demandé à bénéficier du régime dérogatoire d’autorisation de tirs de cormorans. CAA Lyon, 7 janv. 2011, M. Bizouerne, n° 09LY02049.

Relevant legal text(s) :