Conservation of the European Wildcat Wildcat European the of Conservation

2019 MAY DATE: SUBMISSION

LAW UBLIC P INTERNATIONAL AND EUROPEAN DEPARTMENT:

UNIVERSITY TILBURG INSTITUTION:

2015256 SNR:

P OOSTENDOR REMI NAME:

Issue of Hybridization within Europe within Hybridization of Issue

(Felis silvestris) and Addressing the the Addressing and silvestris) (Felis Conservation of the European Wildcat Wildcat European the of Conservation

Table of Contents

Summary ...... 2 Chapter 1 Introduction ...... 5 1.1 The European wildcat ...... 5 1.1.1 Taxonomy ...... 6 1.1.2 Habitat ...... 6 1.1.3 Ecology...... 7 1.2 Conservation status and legal framework ...... 7 1.3 Conservation threats ...... 9 1.3.1 European wildcat population in Scotland ...... 10 1.3.2 European wildcat population in the Netherlands ...... 11 1.4 Central aim and structure ...... 11 Chapter 2 Legal Framework of the European Wildcat ...... 13 2.1 Convention on Biological Diversity ...... 13 2.2 Convention on International Trade in Endangered Species of Wild Fauna and Flora ...... 14 2.3 Bern Convention ...... 15 2.4 EU Habitats Directive ...... 20 2.5 Concluding remarks ...... 26 Chapter 3 The European wildcat and hybridization ...... 28 3.1 Hybrids: Included or excluded ...... 28 3.2 Addressing hybridization ...... 30 3.2.1 Removing or neutering hybrids from the wild ...... 30 3.2.2 Captive breeding programme ...... 31 3.2.3 Connecting populations ...... 33 3.2.4 Reducing the risk of (feral) domestic cats ...... 33 3.2.5 Mandatory ...... 35 3.3 Concluding remarks ...... 36 Chapter 4 Conclusion ...... 38 4.1 Legal framework of the European wildcat ...... 38 4.2 Addressing hybridization ...... 40 Reference List ...... 42

Summary

In the last few years a lot has been written about the conservation of Europe’s large carnivores. However, from a legal perspective, little attention has been given to Europe’s smaller carnivores. This dissertation intends to change that, at least with respect to the European wildcat. Although this elusive creature is listed as ‘Least Concern’ by the IUCN, the overall population is decreasing. Moreover, the species is classed as threatened at the national level in many European range States. Next to deforestation and diseases, anthropogenic hybridization is to be considered as the primary threat for the species. Law, including international and European law, has a role to play in addressing these threats. In this light, the central aim of this dissertation is to provide an answer to the following question:

‘What is the role of international and European law in conserving the European wildcat (Felis silvestris) within Europe in general, and particularly with regard to addressing the primary threat of hybridization?’

Legal framework of the European wildcat The European wildcat is covered by multiple international legal instruments. Most important are the Bern Convention and the Habitats Directive.

The objective of the former is to conserve wild flora and fauna and their natural habitats, especially those species and habitats whose conservation requires the co-operation of several States, and to promote such co-operation. To achieve this objective, Article 2 obligates the contracting parties to take requisite measures to maintain the population of wild flora and fauna at, or adapt it to, a level which corresponds in particular to ecological, scientific and cultural requirements. This population standard constitutes an absolute minimum, which can safely be assumed to be well above that at which a species is in danger of extinction – i.e. Article 2 requires that the populations should at least not be threatened at national level. Nevertheless, in some cases, it is possible to look at the transboundary level of a population instead of at the national level. This requires a transboundary action plan that sets goals and agreements on measures. However, in case of the European wildcat, effective conservation is not entirely depended on transboundary cooperation. Making the need for such plan lesser in comparison with Europe’s large carnivores.

The objective of the Habitats Directive is the maintenance of a favourable conservation status. This is a situation where a habitat type or species is doing sufficiently well in terms of quality and quantity and has a good prospect of continuing to do so in the future. A favourable situation needs to be

2 reached and maintained, based on the best available knowledge. Thus, the obligation is more than just avoiding extinction.

In order to achieve the above objectives, both the Convention and the Directive provide two main instruments: area protection and species protection. With respect to species protection, the European wildcat is listed in Appendix II of the Bern Convention (strictly protected fauna species), respectively in Annex IV of the Habitats Directive (species of Community interest requiring strict protection). For species listed in Appendix II, Article 6 of the Convention requires contracting parties to take appropriate and necessary legislative and administrative measures to ensure the special protection of the European wildcat. For animal species listed in Appendix IV, Article 12 of the Directive requires to take requisite measures to establish a system of strict protection. For both the Convention and the Directive, this entails an obligation to prohibit, inter alia, the deliberate killing and capturing of the species. Furthermore, it prohibits the deliberate disturbance of the species, particularly during the period of breeding, rearing and hibernation, and it prohibits the deterioration or destruction of breeding sites or resting places.

This required system of prohibitions does not necessarily exhaust the obligation to take ‘appropriate and necessary’, respectively ‘requisite’ measures. The adoption and implementation of purely prohibitive measures may not be sufficient, and may not guarantee effective implementation of Article 6, respectively Article 12. In such cases, both instruments require the adoption and implementation of preventive and mitigation measures. Whether and to what extent such active measures are necessary will vary from situation to situation.

It is possible to derogate from Article 6, respectively Article 12. Both provisions that regulate the derogation – Article 9 of the Bern Convention and Article 16 of the Habitats Directive – set out three conditions, which are essentially the same:

- derogation is only possible for one of the reasons mentioned in Article 9, respectively Article 16; - there is ‘no other satisfactory solution’, respectively ‘no other alternative’; and - derogation will ‘not be detrimental to the survival of the population concerned’, respectively ‘not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range’.

With respect to area protection, the Convention and the Directive do not require the contracting parties, respectively the Member States to designate a site as an Area of Special Conservation Interest, respectively a Natura 2000 area for the European wildcat.

Addressing hybridization The scope of the strict protection requirements laid down in Article 6 of the Convention and Article 12 of the Directive should be interpreted as including wild-born wildcat hybrids in order to prevent European wildcats from being intentionally or mistakenly killed as wildcat hybrids. This means that, in order to remove or capture a wildcat hybrid from the wild, a derogation is required. With respect to the situation in Scotland, there seems to be (based on the best available knowledge) an alternative solution – that ensures the best protection of the species - for removing a wildcat hybrid from the wild – i.e. capturing a wildcat hybrid, in order to neuter the individual, and release it back in the wild. Thus, the removal of wildcat hybrids from the wild, at least with respect to the situation in Scotland, seems to be not in line with the Convention and the Directive. Nevertheless, the outcome of this analysis could be different – i.e. it can vary from situation to situation.

Other ways to address hybridization can be through a captive breeding programme. Such programme can be regarded as one of the last lifelines for the species. Furthermore, connecting different populations where possible seems to reduce the threat of hybridization. And finally, hybridization can be addressed through reducing the risk of (feral) domestic cats. With respect to feral domestic cats, neutering instead of killing individuals seems to be the best practice. When a wild-living cat is neutered and returned to the wild, it maintains a territory and keeps other feral cats or wildcat hybrids from moving into the area. This allows European wildcats to breed only with other European wildcats. With respect to household cats, it is important to neuter them as well. This way, the numbers of feral domestic cats can be limited, and the problem of hybridization is tackled at its roots.

The above mentioned preventive and mitigation measures is in conformity with the obligation of States under the Bern Convention and the Habitats Directive, and may be essential in order to comply with those obligations. Whether and to what extent these active measures are necessary will obviously vary from situation to situation.

Chapter 1 Introduction

This chapter consist out of an introduction to the analytic problem. More specifically, it starts with a small introduction to the European wildcat, followed by the conservation status and the legal framework of the species. Hereafter, the biggest threat for conserving the European wildcat will be discussed with references to the populations of Scotland and the Netherlands, and finally, attention will be paid to the central aim and structure of this dissertation.

1.1 The European wildcat The wildcat is a small predator which is part of the biological family Felidae. The population of this species ranges over Africa, Europe and central Asia to India, China and Mongolia (see figure 1). It is the most common and widely distributed wild cat in the world.1

Figure 1: Wildcat distribution 2015 IUCN Red List2

1 ISEC. (n.d.). Wildcat. Retrieved from: https://wildcatconservation.org/wild-cats/wildcat/ 2 IUCN. (2015) Wild cat. Retrieved from: https://www.iucnredlist.org/species/60354712/50652361 5

1.1.1 Taxonomy The scientific classification (taxonomy) of wildcats is constantly changing. In 2017, the revised taxonomy of the Felidae family recognized the following two full wildcat species: the European wildcat (Felis silvestris) and the African wildcat (Felis Lybica). The former is considered to have two subspieces and the latter is considered to have three subspieces (see figure 2).3

Full wildcat species Subspieces Range European wildcat (Felis Felis silvestris silvestris Europe including Scotland, silvestris) Sicily and Crete

Felis silvestris caucasica Turkey and Caucasus African wildcat (Felis Lybica) Felis lybica lybica Eastern, western and north Africa, Arabian Peninsula, Middle East, Corsica, Sardinia and Crete

Felis lybica cafra Southern Africa

Felis lybica ornata Southwest and Central Asia, Afghanistan, Pakistan, India, Mongolia and China

Figure 2: Species of wildcats according to the revised taxonomy of the Felidae family

Thus, the European wildcat is one of the two full wildcat species. It is about the size of a large domestic cat and has a broad head and a wide set of ears. Their coat is thick and long in winter, grey- brown with a well-defined individual pattern of black stripes on the head, neck, limbs, and a distinct dorsal line. Furthermore, it has a bushy, blunt-ending tail with several black rings and a black tip. Some individuals have a white spot on the throat. Besides, in winter, the wildcat looks rather compact and short-legged, although in reality they have longer legs than most domestic cats.4

1.1.2 Habitat European wildcats are primarily associated with forest habitat and most abundant in broad-leaved or mixed forests. However, they also inhabit grassland and steppe habitats and can be found in the

3 ISEC. (n.d.). Wildcat. Retrieved from: https://wildcatconservation.org/wild-cats/wildcat/ 4 ISEC. (2018). European Wildcat. Retrieved from: https://wildcatconservation.org/wildcats/eurasia/european-wildcat/ 6

Mediterranean maquis scrubland, riparian forest, marsh boundaries and appear along sea coasts or in very wet swampy areas. The European wildcat generally avoids areas of intensive cultivation and of high human densities or human activity.5

1.1.3 Ecology European wildcats are considered solitary, mostly nocturnal and territorial predators. However, in areas with little human activity, wildcats are often active also during the day, with activity peaks at dawn and dusk. For resting sites the European wildcat prefers shelter structures near forest edges. Home ranges of the European wildcat vary. In Scotland home ranges are 1-2 km² for females while home ranges in Hungary are 1.5-8.7 km². In north-eastern France home ranges of males are larger than the ones of females and overlapped with the ranges of 3-5 females. Home range overlap between individuals of the same sex is low.6

Not much is known about the social behaviour of the wildcat. There is evidence that individuals are in contact either by olfactory or vocal or sometimes direct communication with at least their direct neighbours. The European wildcat uses scent marks (urine spraying in both sexes and uncovered faeces) for communication. Vocal communication occurs throughout the year, but most frequently in the breeding season. Although the wildcat is an excellent climber, it hunts almost exclusively on the ground.7 It usually hunts by moving slowly and quietly through its territory, but also employs the sit- and-wait predator method. The cat feeds on a variety of small prey, especially rodents, but will also engage with larger animals such as hares, rabbits, and young deer.8

1.2 Conservation status and legal framework According to the International Union for Conservation of Nature (IUCN) Red list of Threatened Species the overall population of wildcats is decreasing and the wildcat is considered as ‘Least Concern’.9 However, this assessment was made in 2014 and has not been updated since. Besides, the IUCN does not make a distinction between the different kinds of full wildcat species. Thus, the classification of ‘Least Concern’ can be misleading.

5 Ibid. 6 IUCN/SSC Cat Specialist Group. (n.d.) European wildcat. Retrieved from: http://www.catsg.org/index.php?id=101 7 IUCN/SSC Cat Specialist Group. (n.d.) European wildcat. Retrieved from: http://www.catsg.org/index.php?id=101 8 Felidae Conservation Fund. (n.d.) European wildcat. Retrieved from: http://www.felidaefund.org/?q=species- european-wildcat 9 IUCN. (2015) Wild cat. Retrieved from: https://www.iucnredlist.org/species/60354712/50652361 7

Contradictory, the European wildcat is classed as threatened at the national level in many European range States (see figure 3).10

Figure 3: Assessment of the conservation status of the European wildcat at the European biogeographical level11

Furthermore, the European wildcat is mentioned in a number of international legal instruments. It is listed in the EU Habitats Directive (Directive 92/43/EEC12) on Annex IV (animal and plant species of community interest in need of strict protection), in the Bern Convention13 on Annex II (strictly protected fauna species), and in the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)14 on Annex II (species not necessarily threatened with extinction, but may become so if trade is not regulated).

10 IUCN. (2015) Wild cat. Retrieved from: https://www.iucnredlist.org/species/60354712/50652361 11 European Environment Agency. Species: Felis silvestris, Report under the Article 17 of the Habitats Directive Period 2007-2012. Retrieved from: https://eunis.eea.europa.eu/species/1403#legal_status 12 Council Directive 92/43/EEC, 1992. Retrieved from: https://eur-lex.europa.eu/legal- content/EN/TXT/?uri=CELEX:31992L0043 13 Convention on the Conservation of European Wildlife and Natural Habitats, 1979. Retrieved from: https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/104 14 Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973. Retrieved from: https://www.cites.org/sites/default/files/eng/disc/CITES-Convention-EN.pdf 8

1.3 Conservation threats Centuries ago, the European wildcat was widely distributed in Europe. It was only absent in Fennoscandia. The fragmented distribution today, was caused by habitat fragmentation and targeted persecution which occurred in Europe between the late 1700s and mid-1900s.15

Nowadays, although deforestation, which destroys the preferred habitat of the European wildcat, is most certainly still a threat, one of the main threats to the European wildcat is anthropogenic (human-caused) hybridization (interbreeding) with an invasive alien species: the domestic cat (Felis catus).16 Cross mating with the abundant domestic feral cat and hybrid population gradually dilutes the wildcat genes until only feral cats are left.17 Although the lack of information prevents us from drawing a general conclusion, hybridization is considered widespread; there may be very few wildcat populations remaining where there is little history of hybridization with the domestic cat18.

Location Hybridization rate estimation Swiss Jura 20% France 36% - 46% West Germany 43% Scotland 88%

Figure 4: local hybridization rate estimations based on the latest IUCN Wildcat assessment from 201519

It is important to note that hybridization in this form (human-caused) is not ‘evolution’. The domestic cat is a descendant of the African wildcat (see figure 2). With the invention of agriculture in the Middle East 10,000 years ago, the first stores of grain were established. Mice and rats moved in and African wildcats turned up to hunt them. It did not take long before the cats adapted to life with humans and, as farming spread westwards, the cats came with them.20 For example, today, there are an estimated 10 million descendants of these early domestic cats in homes across the United Kingdom.21 Thus, domestic cats are only here because we brought them here. Occasionally household animals go wild, mate and create colonies of feral cats. These form populations at the edges of villages and in farms. The problem is that some of these feral animals meet up with wildcats

15 IUCN. (2015) Wild cat. Retrieved from: https://www.iucnredlist.org/species/60354712/50652361 16 ISEC. (2018). European Wildcat. Retrieved from: https://wildcatconservation.org/wildcats/eurasia/european-wildcat/ 17 Wildcat Haven. (2014). Scottish wildcat conservation. Retrieved from: http://www.scottishwildcats.co.uk/conservation.html 18 IUCN. (2015) Wild cat. Retrieved from: https://www.iucnredlist.org/species/60354712/50652361 19 IUCN. (2015) Wild cat. Retrieved from: https://www.iucnredlist.org/species/60354712/50652361 20 The Guardian. (2012). Why the Scottish wildcat is staring extinction in the face. Retrieved from: https://www.theguardian.com/environment/2012/sep/16/scottish-wildcat-extinction 21 Ibid. 9 and they mate, which thus leads to hybridization.22 Although hybridization may constitute a source of genetic variation and adaption, which may be considered beneficial, it may, on the other hand, result in the breakup of genetic adaptions, genetic swamping and, ultimately, extinction.23 Not surprisingly, hybridization between wild species and their domestic relatives is considered a major threat for wildlife conservation.24

Another threat is that feral domestic cats compete with wildcats for prey and space, and there is a high potential for disease transmission between domestic cats and wildcats.25

1.3.1 European wildcat population in Scotland As we can see in figure 4, the level of hybridization is most critical in Scotland. After surviving human persecution for five hundred more years than the British wolf and over a thousand more years than the British lynx or boar, European wildcats are born survivors; adaptable and resilient to some of the most substantial changes in habitat, culture and politics than that any animal has had to face.26 Today, the European wildcat within the United Kingdom (more specifically, Scotland), also known as the Highland Tiger, is staring extinction in the face.27 A research from the Scottish Wildcat Association estimated the population to a figure of 35 in 2012.28 Other research, based on trail-camera surveys conducted from 2010 to 2013, estimated that there are 115 to 314 individuals.29 The latest research (2016) suggests that there are fewer than 100 European wildcats in the wild with no evidence of any decent sized populations anywhere in the country.30 But no matter how you stack up their numbers, it is clear that the future of this distinctive animal is uncertain.

To emphasize how critical the problem is in Scotland, estimates suggest that there are now up to 100,000 domestic cats that have gone feral in the Scottish Highlands.31 The fact that domestic cats

22 Ibid. 23 Steyer K., Tiesmeyer A., Munoz-Fuentes V., and Nowak C. (2018). Low rates of hybridization between European wildcats and domestic cats in a human-dominated landscape. Journal of Ecology and Evolution, 8(4), 2290-2304. Retrieved from: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5817136/ 24 Ibid. 25 IUCN. (2015) Wild cat. Retrieved from: https://www.iucnredlist.org/species/60354712/50652361 26 Wildcat Haven. (2014). The Scottish Wildcat. Retrieved from: http://www.scottishwildcats.co.uk/wildcat.html 27 The Guardian. (2012). Why the Scottish wildcat is staring extinction in the face. Retrieved from: https://www.theguardian.com/environment/2012/sep/16/scottish-wildcat-extinction 28 Wildcat Haven. (2014). Scottish wildcat conservation. Retrieved from: http://www.scottishwildcats.co.uk/conservation.html 29 Scottish Natural Heritage. (n.d.) Wildcats. Retrieved from: https://www.nature.scot/plants-animals-and- fungi/mammals/land-mammals/wildcats 30 The Guardian. (2016). Hopes for saving Scottish wildcat rest on captive breeding plan. Retrieved from: https://www.theguardian.com/environment/2016/dec/26/hopes-for-saving-scottish-wildcat-rest-on-captive- breeding-plan 31 The Guardian. (2012). Why the Scottish wildcat is staring extinction in the face. Retrieved from: https://www.theguardian.com/environment/2012/sep/16/scottish-wildcat-extinction 10 can survive there shows that they are a very resourceful species. However, that success shows the kind of trouble that the European wildcat within Scotland is in today: there are a few hundred of them (at best) surrounded by 100.000 feral domestic cats. 32 Thus, they are being outbred.

1.3.2 European wildcat population in the Netherlands Although the European wildcat’s population is decreasing and the Scottish population is staring extinction in the face, there is good news as well: the European wildcat is now making a comeback to the Netherlands in southern Limburg.

After centuries of absence, the first Dutch European wildcats were sporadically seen between 2002 and 2006. Yet, since 2012 people recorded the wildcats more often. Research by ARK Natuurontwikkeling from 2015 identified eight individuals; two years later the number grew to fourteen. Besides, at least at two locations in the Limburg hills reproduction took place.33 Remarkably, there are no signs of hybridization in the population so far.34

1.4 Central aim and structure The European wildcat is, next to the Iberian lynx (Lynx pardinus) and the Eurasian lynx (Lynx lynx), the only wild cat that can be found within Europe in present day.35 Making it essential that we succeed to preserve these species. In this regard, the law, including international and European law, has a role to play. Therefore, it is important to assess the legal status of the European wildcat within Europe and to assess how these legal instruments can be used to address the primary threat of hybridization. More specifically, this dissertation aims to address the following central research question:

To answer this question, the following sub-questions are going to be assessed in the upcoming chapters:

I What is the role of international and European law in conserving the European wildcat?:

32 The Guardian. (2012). Why the Scottish wildcat is staring extinction in the face. Retrieved from: https://www.theguardian.com/environment/2012/sep/16/scottish-wildcat-extinction 33 ARK Natuurontwikkeling. (2017). De wilde kat anno 2017. Retrieved from: https://www.ark.eu/sites/default/files/media/Wilde_kat/De_wilde_kat_anno_2017.pdf 34 ARK Natuurontwikkeling. (2015). Soortbeschermingsplan Wilde kat, page 15. Retrieved from: https://www.ark.eu/sites/default/files/media/Soortbeschermingsplannen/wilde_kat_LR_def.pdf 35 World Atlas. (2017). The three wildcats found in Europe. Retrieved from: https://www.worldatlas.com/articles/the-three-wild-cats-found-in-europe.html 11

- To what extent are European wildcats subject to protection under international and regional conventions? - To what extent are European wildcats subject to protection under European law?

II What is the role of international and European law in addressing the primary threat of hybridization?:

- Taking into account the outcomes of the analysis of question I, how can these instruments be used to address the threat of hybridization? - What is there to learn from the conservation policies of Scotland that are addressing the issue of hybridization?

Chapter 2 of this dissertation focuses on sub-question I. In this chapter, the legal framework that aims to protect the European wildcat is assessed by doing a desk-research to provide an answer to what extent the European wildcat receives legal protection under international and European law. Chapter 3 aims to provide an answer on sub-question II. By doing a desk-research, an answer can be given to the question how the assessed legal framework can be used to address the threat of hybridization. In doing so, references will be made to the conservation policies that are taking place to address hybridization in Scotland. For this purpose, a small case-study has been done. The final chapter consists out of the overall conclusion of the dissertation, giving an answer to the research question.

Chapter 2 Legal Framework of the European Wildcat

This chapter discusses the extent to which the European wildcat receives legal protection under international legal instruments within Europe. The species is covered by multiple international legal instruments. Most important regimes for present purposes are the Convention on the Conservation of European Wildlife and Natural Habitats (the Bern Convention)36 and the EU Habitats Directive (Directive 92/43/EEC)37. The protected status of the European wildcat under these instruments is rendered schematically in the following figure:

Instrument Protection status Bern Convention Appendix II Habitats Directive Annex IV

Figure 5: Protection status of the European wildcat under Bern Convention and Habitats Directive

Nevertheless, before assessing these instruments, other relevant instruments (the Convention on Biological Diversity and the Convention on International Trade in Endangered Species of Wild Fauna and Flora) should be mentioned as well.

2.1 Convention on Biological Diversity First there is the Convention on Biological Diversity (CBD)38 which contains a few generally phrased and conditional provisions of relevance. The objectives of this Convention are: the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources.39 The Convention requires all the contracting parties, as far as possible and appropriate, to establish a system of protected areas; to promote the maintenance of viable populations of species in natural surroundings and the recovery of threatened species, and to enact the necessary legislation and/or other regulatory provisions for the protection of threatened species and populations40. Furthermore, there are obligations to develop national biodiversity strategies, plans and programmes41 and obligations concerning ex-situ

36 Convention on the Conservation of European Wildlife and Natural Habitats, 1979. Retrieved from: https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/104 37 Council Directive 92/43/EEC, 1992. Retrieved from: https://eur-lex.europa.eu/legal- content/EN/TXT/?uri=CELEX:31992L0043 38 Convention on Biological Diversity, 1992. Retrieved from: https://www.cbd.int/doc/legal/cbd-en.pdf 39 CBD, art. 1. 40 CBD, art. 8. 41 CBD, art. 6. 13 conservation42, sustainable use43 and environmental impact assessment44. However, the language of the Convention gives parties plenty discretion to determine what, in their point of view, is ‘possible’ and ‘appropriate’. This discretion is not limitless, however, particularly regarding what is ‘appropriate’. For example, allowing a species (e.g. the European wildcat) to go extinct on its territory would be hard to defend as an appropriate discharge of a party’s Convention obligations.45

2.2 Convention on International Trade in Endangered Species of Wild Fauna and Flora Secondly, there is the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).46 Its aim is to ensure that international trade in specimens of wild animals and plants does not threaten their survival.47 All import, export, re-export and introduction from the sea of species covered by the Convention have to be authorized through a licensing system.48 Furthermore, each Party to the Convention must designate one or more Management Authorities in charge of issuing the licensing system and one or more Scientific Authorities who determine whether or not trade is harmful.49 The species that are covered by CITES are listed in three appendices. The listing procedure is based on biological and trade criteria and by majority voting by the Conference of the Parties (COP).50 Appendix I, which has a strict regime (trade which is not for commercial purposes), concerns species that are threatened with extinction.51 Appendix II, which is more flexible (trade for commercial purposes is allowed), concerns species that are not necessarily threatened with extinction but may become so if trade is not regulated52. Finally there is Appendix III which is a country specific Appendix53. For present purposes, the European wildcat is listed under Appendix II.54 This means that, in order to trade in specimens of this species, a prior export permit needs to be granted.55 Such an export permit shall only be granted if trade will not be detrimental to the survival of the species.56

42 CBD, art. 9. 43 CBD, art. 10. 44 CBD, art. 14. 45 Janssens, B., and Trouwborst, A. (2018). Rhinoceros Conservation and International Law: The Role of Wildlife Treaties in Averting Megaherbivore Extinction. Journal of International Wildlife Law & Policy, 21(2-3), 146-189, see part 4 “Convention on Biological Diversity”. 46 Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973. Retrieved from: https://www.cites.org/sites/default/files/eng/disc/CITES-Convention-EN.pdf 47 CITES. (n.d.) What is CITES?. Retrieved from: https://www.cites.org/eng/disc/what.php 48 See e.g. CITES, art. III and IV. 49 CITES. (n.d.) How CITES work. Retrieved from: https://www.cites.org/eng/disc/how.php; CITES, art. IX. 50 CITES, art. XI. 51 CITES, art. III. 52 CITES, art. IV. 53 CITES, art. V. 54 CITES. (n.d). Felis silvestris. Retrieved from: https://cites.org/eng/node/21682 55 CITES, art. IV (2). 56 CITES, art. IV (2)(a). 14

However, the Bern Convention and the EU offer more protection. The former in particular prohibits the possession of and internal trade in these animals, alive or dead, including stuffed animals and any readily recognisable part or derivative thereof.57 With respect to the latter, due to the European Single Market and the absence of systematic border controls within the EU, the provisions of CITES are implemented uniformly in all Member States.58 This implementation is done through a set of Regulations known as the EU Wildlife Trade Regulations.59 The basic Regulation (Council Regulation (EC) No 338/97)60 deals with the protection of species of wild fauna and flora by regulating trade therein. It lays down the provisions for import, export and re-export as well as internal EU trade in specimens of species listed in its four Annexes.61 For present purposes, the European wildcat is listed in Annex A62 which includes all CITES Appendix I species, except where EU Member States have entered a reservation; some CITES Appendix II and III species (like the European wildcat), for which the EU has adopted stricter domestic measures, and some non-CITES species.63 For species listed in Annex A (and B) import conditions are stricter than under CITES.64 Besides, the following commercial activities involving Annex A specimens are prohibited: purchase, offer to purchase, acquisition for commercial purposes, display to the public for commercial purposes public, use of commercial gain, sale, keeping for sale, offering for sale and transport for sale.65

2.3 Bern Convention The parties to this pan-European wildlife conservation treaty, which operates under the auspices of the Council of Europe, include virtually all European States, including all 28 EU Member States, and the EU itself.66 An assessment of this Convention is called for in particular with respect to contracting parties where the European wildcat occur but where the Habitats Directive does not apply (such as

57 Bern Convention, art. 6(e). 58 European Commission. (2019). The European Union and Trade in Wild Fauna and Flora. Retrieved from: http://ec.europa.eu/environment/cites/legislation_en.htm 59 Ibid. 60 Council Regulation (EC) No 338/97. Retrieved from: https://eur-lex.europa.eu/legal- content/EN/TXT/HTML/?uri=CELEX:01997R0338-20170204&qid=1484753427128&from=EN 61 European Commission. (2019). The European Union and Trade in Wild Fauna and Flora. Retrieved from: http://ec.europa.eu/environment/cites/legislation_en.htm 62 Council Regulation (EC) No 338/97. Retrieved from: https://eur-lex.europa.eu/legal- content/EN/TXT/HTML/?uri=CELEX:01997R0338-20170204&qid=1484753427128&from=EN 63 European Commission. (2019). The European Union and Trade in Wild Fauna and Flora. Retrieved from: http://ec.europa.eu/environment/cites/legislation_en.htm 64 European Commission. (2019). The Differences between EU and CITES Provisions in a Nutshell. Retrieved from: http://ec.europa.eu/environment/cites/pdf/differences_b_eu_and_cites.pdf 65 Ibid. 66 Council of Europe. (2019). Chart of signatures and ratifications of Treaty 104. Retrieved from: https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/104/signatures?p_auth=oihCSoJV 15

Belarus, Bosnia and Herzegovina Moldova, Switzerland, and Ukraine).67 Besides, in the EU, the species and area protection provisions from the Convention have been implemented through the Habitats Directive. The latter must therefore be applied consistently with the Bern Convention.68

Objective The Convention has a broad objective and aims to conserve wild flora and fauna and their natural habitats, especially those species and habitats whose conservation requires the co-operation of several States, and to promote such co-operation.69 To achieve this objective, Article 2 obligates the contracting parties to take requisite measures to maintain the population of wild flora and fauna at, or adapt it to, a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements and the needs of sub-species, varieties or forms at risk locally. This is a general provision that applies to all wildlife.70

Minimum requirement Although Article 2 does not precisely define this ‘level’ in more detail, it does set a standard at which populations of wildlife must be maintained, or to which depleted populations must be adjusted.71 The formulation of Article 2 also indicates that conservation interests will outweigh economic and recreational interest in case of conflict. This is also in line with the Convention’s aims, which are limited to the conservation of wild flora and fauna and their habitats. Generally, the “object and purpose” of the Bern Convention would thus seem to dictate interpretations in favour of wildlife conservation rather than the contracting parties’ room for balancing conservation with other interests.72 Furthermore, the population standard laid down in Article 2 constitutes an absolute minimum.73 This level can safely be assumed to be well above that at which a species is in danger of extinction.74 Besides, the level required has been alternatively described as a “favourable

67 Trouwborst, A., Krofel, M., and Linnell, J.D.C. (2015). Legal implications of range expansions in a terrestrial carnivore: the case of the golden jackal (Canis aureus) in Europe. Biodiversity Conservation, 24, 2593-2610, see part “The Bern Convention”. 68 Trouwborst, A. (2010). Managing the Carnivore Comeback: International and EU Species Protection Law and the Return of Lynx, Wolf and Bear to Western Europe. Journal of Environmental Law, 22(3), 347-372, see part “The Legal Framework for Large Carnivores”. 69 Bern Convention, art. 1(1). 70 Trouwborst, A., Krofel, M., and Linnell, J.D.C. (2015). Legal implications of range expansions in a terrestrial carnivore: the case of the golden jackal (Canis aureus) in Europe. Biodiversity Conservation, 24, 2593-2610, see part “The Bern Convention”. 71 Trouwborst, A., Fleurke, F.M., and Linnel, J.D.C. (2017). Norway’s Wolf Policy and the Bern Convention on European Wildlife: Avoiding the “Manifestly Absurd”. Journal of International Wildlife Law & Policy, 20(2), 155- 167, see part “The population level prescribed by the convention”. 72 Ibid. 73 Ibid. 74 Ibid. 16 conservation status” and a “satisfactory conservation status” by the Standing Committee75 (the governing body in which all Bern Convention parties are represented).76 For example, in the Netherlands and the United Kingdom, the European wildcat is being at risk of extinction. That fact means that it does not meet the requirements of Article 2 since the populations should at least not be threatened at national level.

Transboundary level Nevertheless, in some cases, it is possible to look at the transboundary level of a population instead of at the national level. This requires a transboundary action plan that sets goals and agreements on measures.77 The Standing Committee has e.g. repeatedly called on parties with a shared large carnivore population, to adopt and implement a harmonized population-level policy.78 However, in this sense, the European wildcat is not a ‘large carnivore’. In contrast to Europe’s large carnivores, such as the Eurasian lynx (Lynx lynx), wolves (Canis Lupus) and brown bears (Ursus arctos), whom have very large area requirements, with individuals using from 100 to 1000 km2 each for their territories79, the European wildcat’s home ranges vary from 1 to 8,7 km2.80 Thus, the populations of European wildcats are not spread across many administrative borders like the large carnivores where effective conservation requires that the responsible authorities in the different areas coordinate their management actions. Since the European wildcat’s home ranges are relatively small, most conservation measures, such as habitat protection measures, do not necessarily need transboundary cooperation. However, for some conservation measures, transboundary cooperation is required. As we will see in section 3.2.3, to prevent hybridization it is important to keep or make a population robust. Connection between the different populations (e.g. the population of the Netherlands with the populations of Germany (Eifel), Belgium (Ardennes) and northern France) seems to be beneficial for the species and prevent or at least reduces the threat of hybridization.

75 Bern Convention Standing Committee Guidelines No. 3 (1993); Bern Convention Standing Committee Recommendation No. 163 (2012). Retrieved from: https://www.coe.int/en/web/bern- convention/documents#{%2212475748%22:[0]} 76 Trouwborst, A., Fleurke, F.M., and Linnel, J.D.C. (2017). Norway’s Wolf Policy and the Bern Convention on European Wildlife: Avoiding the “Manifestly Absurd”. Journal of International Wildlife Law & Policy, 20(2), 155- 167, see part “The population level prescribed by the convention”. 77 Ibid, see part “The transboundary population perspective”. 78 Bern Convention Standing Committee Recommendation No. 163 (2012). Retrieved from: https://www.coe.int/en/web/bern-convention/documents#{%2212475748%22:[0]} 79 European Commission. (2008). Guidelines for Population Management Plans for Large Carnivores. page 5. Retrieved from: http://ec.europa.eu/environment/nature/conservation/species/carnivores/pdf/guidelines_for_population_lev el_management.pdf 80 IUCN/SSC Cat Specialist Group. (n.d.) European wildcat. Retrieved from: http://www.catsg.org/index.php?id=101 17

Considering the above, obviously there is a lesser need for transboundary cooperation as compared to Europe’s large carnivores. However, this does not mean that it is not possible to look at the transboundary level of a population instead of at the national level. Besides, effective conservation, at least with regard to the issue of hybridization, requires transboundary cooperation.

Passive species protection These general obligations are accompanied by specific duties concerning the two principal approaches to nature conservation: the conservation of habitats and the protection of species. These approaches are directed principally, although not exclusively, at plant and animal species listed in appendices to the Convention.81 For present purposes, the European wildcat is listed in Appendix II: strictly protected fauna species. This means in particular that each contracting party has to take appropriate and necessary legislative and administrative measures to ensure the special protection of the European wildcat. The following will in particular be prohibited for the European wildcat:

- all forms of deliberate capture and keeping and deliberate killing; - the deliberate damage to or destruction of breeding or resting sites; - the deliberate disturbance of wild fauna, particularly during the period of breeding, rearing and hibernation, insofar as disturbance would be significant in relation to the objectives of the Convention; - the deliberate destruction or taking of eggs from the wild or keeping these eggs even if empty (however, not relevant for present purposes); - the possession of and internal trade in these animals, alive or dead, including stuffed animals and any readily recognisable part or derivative thereof, where this would contribute to the effectiveness of the provisions of this article.82

Active species protection It follows from the formulation of this provision that the required system of prohibitions does not necessarily exhaust the obligation to take ‘appropriate and necessary’ measures. Where it is apparent that these prohibitions alone will not suffice to ensure the special protection of the species, it appears that the taking of additional action is necessary in order to comply with Article 6.83 Whether and to what extent such active measures are necessary will vary from species to species

81 Bastmeijer, K. (2016), Wilderness Protection in Europe: The Role of International, European and National Law. Cambridge, United Kingdom: Cambridge University Press. Page 164. 82 Bern Convention, art. 6. 83 Trouwborst, A. (2014). Applying the Bern Convention on the Conservation of European Wildlife and Natural Habitats to the Problem of Hybridisation between Wolves (Canis Lupus) and Domestic Dogs: An Analysis and a Proposal for a Standing Committee’s Recommendation, see part ‘Preventing and Mitigating Wolf-Dog Hybridisation’. 18 and from situation to situation. Besides, Article 6 leaves a certain measure of discretion to contracting parties in determining what are the ‘appropriate and necessary’ measures. Depending on the circumstances, a party’s margin of discretion in respect of the implementation of the above duties may be broader or narrower – the discretionary room will shrink if the best scientific data available clearly indicate that a particular type of conservation action is necessary.84

Derogations Thus, the contracting parties are under the obligation to prohibit, inter alia, any killing or capturing of European wildcats. Exemptions are only allowed when all three conditions of Article 9 of the Convention are met. First, there needs to be one of the reasons mentioned in Article 9 – including for the purposes of research and education, of repopulation, of reintroduction and for the necessary breeding. Secondly, there has to be no other satisfactory solution to achieve the purpose in question. And, finally, the exception may not be detrimental to the survival of the population concerned.85

Habitat conservation – Emerald Network Regarding the conservation of habitats, the Convention stipulates that the contracting parties have to take appropriate and necessary legislative and administrative measures to ensure the conservation of the habitats of all the wild flora and fauna species.86 Translated to the European wildcat, the contracting parties have to make sure that the habitats of the species are protected. Besides, in case of planning and development policies, the contracting parties shall have regard to the conservation requirements of the protected area to avoid or minimise as far as possible any deterioration of such areas.87 However, the language of this provision gives parties, again, plenty discretion to determine what, in their point of view, is ‘appropriate and necessary’.

Some habitats and some species requires specific habitat conservation measures. These habitats and species are listed in Resolution No. 488, respectively Resolution No. 689 of the Standing Committee to the Bern Convention.90 These Areas of Special Conservation Interest together form the ecological Emerald Network. The objective of the Emerald Network is the long term survival of the species and habitats of the Bern Convention requiring specific protection measures.91 Moreover, the designation

84 Ibid. 85 Bern Convention, art. 9(1). 86 Bern Convention, art. 4(1). 87 Bern Convention, art. 4(2). 88 Bern Convention Standing Committee Resolution No. 4 (1996). Retrieved from: https://search.coe.int/bern- convention/Pages/result_details.aspx?ObjectId=09000016807469e7 89 Bern Convention Standing Committee Resolution No. 6 (1998). Retrieved from: https://search.coe.int/bern- convention/Pages/result_details.aspx?ObjectId=0900001680746afc 90 Council of Europe. (n.d.). Emerald Network of Areas of Special Conservation Interest. Retrieved from: https://www.coe.int/en/web/bern-convention/emerald-network 91 Ibid. 19 of such sites at national level is considered as one of the main tools for the Contracting Parties to comply with their obligations under the Bern Convention.92 The EU, as noted above, is also a Contracting Party to the Bern Convention. In order to fulfil its obligations from the Convention, particularly with respect to habitat protection, it produced the Habitats Directive, and subsequently set up the Natura 2000 network. Thus, the Natura 2000 sites are therefore considered as the contribution from the EU Member States to the Emerald Network.93 However, for present purposes, the European wildcat is not listed in Resolution No. 6. Thus, there is no obligation to designate such site for the European wildcat.

Reservations As can be seen in figure 6, four parties made reservations concerning the European wildcat.

Party Reservation Republic of Bulgaria The provisions of the Convention do not apply to the European wildcat. Croatia Relating to Articles 5, 6 and 7 of the Convention, the European wildcat has to be considered as species mentioned in Appendix III (instead of Appendix II). Georgia Not to apply provisions of Article 6 of the Convention in respect to the species contained in Appendix III to the Convention occurring on the territory of Georgia, and shall provide their protection pursuant to Article 7 of the Convention, i.e. shall treat them as having being included in Appendix III to the Convention. North Macedonia Appendix II - Strictly protected fauna species - does not apply to the European wildcat.

Figure 6: Reservations for the Bern Convention regarding the European wildcat94

2.4 EU Habitats Directive As noted above, the Bern Convention is, within the EU, implemented by the Habitats Directive. The latter particularly consists out of, just like the former, two main instruments concerning the two

92 Ibid. 93 Ibid. 94 Council of Europe. (2019). Reservations and Declarations for Treaty No.104 - Convention on the Conservation of European Wildlife and Natural Habitats. Retrieved from: https://www.coe.int/en/web/conventions/full-list/- /conventions/treaty/104/declarations

20 principal approaches to nature conservation (area and species protection). There is, however, a major difference. The Bern Convention does not has a strong law enforcement tool. Interpretation of the provisions of the Convention is done by the Standing Committee95 – or in case of a conflict within the Standing Committee by an arbitral tribunal96 – and the Recommendations of this institution are not legally binding. In contrast to the Bern Convention, to ensure the Habitats Directive is enforced, understood and uniformly applied in all Member States, a judicial institution is essential. That institution is the Court of Justice of the European Union (ECJ).97 For example, if the Commission considers that a Member State has failed to fulfil a treaty obligation, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the latter does not comply with the opinion, the Commission may bring the matter before the ECJ (infringement action).98 Furthermore, to ensure the effective and uniform application of EU legislation (such as the Habitats Directive) and to prevent divergent interpretations, the national courts may, and sometimes must, refer to the ECJ and ask it to clarify a point concerning the interpretation of EU law (references for a preliminary ruling).99 This way, they can ascertain, for example, whether their national legislation complies with the Habitats Directive.100 Thus, the Habitats Directive has a strong law enforcement tool which makes this instrument more effective.

Objective The central aim of the Habitats Directive is the maintenance of a ‘favourable conservation status’ for natural habitats and species of wild fauna and flora of Community importance on the European territories of the Member States, in order to contribute to biodiversity conservation at large.101 In other words, a favourable conservation status could be described as a situation where a habitat type or species is doing sufficiently well in terms of quality and quantity and has a good prospect of continuing to do so in the future.102 The fact that a habitat or species is not threatened (i.e. not faced

95 Bern Convention, art. 14. 96 Ibid, art. 18 (2). 97 European Commission. (2014). Article 6 of the Habitats Directive - Rulings of the European Court of Justice, page 7. Retrieved from: http://ec.europa.eu/environment/nature/info/pubs/docs/others/ECJ_rulings%20Art%20%206.pdf 98 Treaty on the Functioning of the European Union, art. 258. 99 Ibid, art. 267. 100 European Commission. (2014). Article 6 of the Habitats Directive - Rulings of the European Court of Justice, page 8. Retrieved from: http://ec.europa.eu/environment/nature/info/pubs/docs/others/ECJ_rulings%20Art%20%206.pdf 101 Habitats Directive, art. 2(1)(2) and art. 3(1); Trouwborst, A. (2010). Managing the Carnivore Comeback: International and EU Species Protection Law and the Return of Lynx, Wolf and Bear to Western Europe. Journal of Environmental Law, 22(3), 347-372, see part “Conservation Status”. 102 European Commission. (2007). Guidance Document on the Strict Protection of Animal Species of Community Interest under the Habitats Directive 92/43/EEC. page 9-10. Retrieved from: http://ec.europa.eu/environment/nature/conservation/species/guidance/pdf/guidance_en.pdf 21 by any direct extinction risk) does not necessarily mean that it has a favourable conservation status. The object of the Directive is defined in a positive way: a ‘favourable’ situation needs to be reached and maintained, based on the best available knowledge. Therefore, the obligation of a Member State is more than just avoiding extinction. All measures taken must aim to reach or maintain a favourable conservation status.103 Regarding animal species, the conservation status will be taken as ‘favourable’ when:

- population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats, and - the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future, and - there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on long-term basis.104

Thus, for defining and assessing both the current and target conservation status, four components play a role: population range, population size, quality of the habitats, and future perspectives of the species.105 Besides, a favourable conservation status requires distribution of a species over different countries, as one population can die by natural causes (e.g. a disease).

Passive species protection In order to achieve its objectives, the Directive, as noted above, provides two main instruments: area protection and species protection. The provisions for species protection apply to the whole of a Member State’s territory and concern the physical protection of specimens as well as their breeding sites and resting places. Both regimes allow for exceptions under certain conditions and both instruments are complementary and jointly aim to ensure a favourable conservation status for all species of Community interest.106

For present purposes, the regime of the area protection (Natura 2000) is irrelevant. The European wildcat is listed in Annex IV which means that there is no obligation to designate a Natura 2000 area for the species. The Natura 2000 regime is only applicable to the natural habitat types listed in Annex I and habitats of the species listed in Annex II.107 This leaves us to the regime of species protection, which is applicable to the European wildcat. Article 12(1) stipulates that Member States have to take

103 Ibid, page 9-10. 104 Habitats Directive, art. 1(i).e 105 European Commission. (2007). Guidance Document on the Strict Protection of Animal Species of Community Interest under the Habitats Directive 92/43/EEC. page 10. Retrieved from: http://ec.europa.eu/environment/nature/conservation/species/guidance/pdf/guidance_en.pdf 106 Ibid, page 13. 107 Habitats Directive, art. 2(1). 22 requisite measures to establish a system of strict protection for the animal species listed in Annex IV in their natural range. Thereby specifically outlawing:

- all forms of deliberate capture or killing of specimens of these species in the wild; - deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration; - deliberate destruction or taking of eggs from the wild (however, not relevant for present purposes); - deterioration or destruction of breeding sites or resting places.

Thus, Member States have to prohibit, inter alia, deliberate killing and capturing of the European wildcat. This obligation is far-reaching since Member States not only have to make sure it is prohibited by legislation, but they have to, in order to comply with the Directive, take all measures necessary to ensure that the prohibitions in question are not violated in practice as well.108 According to the ECJ it’s the result that counts.109 In other words, the full and effective application of Article 12 requires, on the one hand, the establishment of a legal framework of coherent and coordinated measures and, on the other, the application of concrete, coherent and coordinated measures to enforce these provisions on the ground effectively.110

Active species protection For some species, like the European wildcat, and in some situations, the adoption and implementation of purely prohibitive measures may not be sufficient, and may not guarantee effective implementation of Article 12. In such cases, Article 12 requires the adoption and implementation of preventive measures.111 Both the Court and the Commission recommend species action plans, on condition that they are correctly established and applied, as effective means of implementing the requirements of Article 12. In the absence of such plan, the system of strict protection contains gaps amounting to a violation of the Directive.112

108 Trouwborst, A. (2010). Managing the Carnivore Comeback: International and EU Species Protection Law and the Return of Lynx, Wolf and Bear to Western Europe. Journal of Environmental Law, 22(3), 347-372, see part “Prohibitions and Derogations”. 109 ECJ Case C-103/00 Commission v Greece (2002) ECR I-1147; ECJ Case C-518/04 Commission v Greece (2006) ECR I-42; ECJ Case C-221/04 Commission v Spain (2006) ECR I-4515. 110 European Commission. (2007). Guidance Document on the Strict Protection of Animal Species of Community Interest under the Habitats Directive 92/43/EEC. page 27. Retrieved from: http://ec.europa.eu/environment/nature/conservation/species/guidance/pdf/guidance_en.pdf 111 Trouwborst, A. (2014). Exploring the Legal Status of Wolf-Dog Hybrids and Other Dubious Animals: International and EU Law and the Wildlife Conservation Problem of Hybridization with Domestic and Alien Species. Review of European Community & International Environmental Law, 23(1), see part ‘Addressing Hybridization: Active Species Protection’. 112 Trouwborst, A. (2014). Exploring the Legal Status of Wolf-Dog Hybrids and Other Dubious Animals: International and EU Law and the Wildlife Conservation Problem of Hybridization with Domestic and Alien 23

Deliberate – conditional intent Additionally, the term ‘deliberate’ has to be, on the basis of the approach taken by the ECJ in cases C- 103/00113 and C-221/04114, interpreted as going beyond ‘direct intention’. A person who is reasonably expected to know that his action will most likely lead to an offence against the species, but intents the offence, if not, at least accepts the results of his action (conditional intent), commits an offence.115

Monitoring Furthermore, according to the fourth paragraph, Member States have to establish a system to monitor the incidental capture and killing of the species (e.g. road kills). Based on the gathered information, Member States are obligated to take further research or conservation measures as required to ensure that incidental capture and killing does not have a significant negative impact on the species.116 For example, in the Netherlands, the European wildcat regularly cross a busy street at a specific spot. Thus, to protect the European wildcat against road kills, ARK Natuuronwikkeling recommends a spacious fauna passage and a special designed lattice.117

Trade Last but not least, Member States have to prohibit the keeping, transport and sale or exchange, and offering for sale or exchange, of specimens taken from the wild.118 Thus, prohibiting the trade of specimens of the European wildcat.

Derogations However, when there is no satisfactory alternative and derogation is not detrimental to the maintenance of the populations of the species at a favourable conservation status in their natural range, Member States may derogate from the assessed provision (Article 12) for the following reasons:

- in the interest of protecting wild fauna and flora and conserving natural habitats;

Species. Review of European Community & International Environmental Law, 23(1), see part ‘Addressing Hybridization: Active Species Protection’; ECJ Case C-183/05, Commission v Ireland (2007), see paragraph 14. 113 ECJ Case C-103/00 Commission v Greece (2002) ECR I-1147. 114 ECJ Case C-221/04 Commission v Spain (2006) ECR I-4515. 115 European Commission. (2007). Guidance Document on the Strict Protection of Animal Species of Community Interest under the Habitats Directive 92/43/EEC. page 37. Retrieved from: http://ec.europa.eu/environment/nature/conservation/species/guidance/pdf/guidance_en.pdf 116 Habitats Directive, art. 12(4). 117 ARK Natuurontwikkeling. (2015). Soortbeschermingsplan Wilde kat, page 25. Retrieved from: https://www.ark.eu/sites/default/files/media/Soortbeschermingsplannen/wilde_kat_LR_def.pdf 118 Habitats Directive, art. 12(2). 24

- to prevent serious damage, in particular to crops, livestock, forests, fisheries and water and other types of property; - in the interest of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment; - for the purpose of research and education, of repopulating and re-introducing these species and for the breeding operations necessary for these purposes; - to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens of the species listed in Annex IV in limited numbers specified by the competent national authorities.119

These exemptions, however, need to be interpreted strictly – in light of the object of the Directive. In other words, Articles 12, 13 and 16 of the Habitats Directive form a coherent body of provisions intended to protect the populations of the species concerned, so that any derogation incompatible with the directive would infringe both the prohibitions set out in Articles 12 and 13 and the rule that derogations may be granted in accordance with Article 16.120 Nevertheless, derogation may still be possible if the goal of a favourable conservation status is not (yet) attained. Derogations in such an exceptional case, according to the ECJ, may be permissible where it is duly established that they are not such as to worsen the unfavourable conservation status of those populations or to prevent their restoration at a favourable conservation status.121 Such flexible approach, however, is only possible when the achievement and maintenance of a favourable conservation status is warranted through a clear and well-developed framework of species conservation measures consisting of appropriate, effective and verifiable measures.122 A substantial role is reserved in this regard for species protection plans (action plans). These plans could be considered as a tool for demonstrating that the derogation system is in line with the objectives of the Directive.123 The firmer the action plan, the more room there is for the granting of derogation measures.

119 Habitats Directive, art. 16(1). 120 Case C-6/04 Commission v UK (2005) ECR I-09017, paragraph 112. 121 Case C-342/05 Commission v Finland (2007) ECR I-4713, paragraph 29. 122 European Commission. (2007). Guidance Document on the Strict Protection of Animal Species of Community Interest under the Habitats Directive 92/43/EEC. page 62. Retrieved from: http://ec.europa.eu/environment/nature/conservation/species/guidance/pdf/guidance_en.pdf; Trouwborst, A. (2010). Managing the Carnivore Comeback: International and EU Species Protection Law and the Return of Lynx, Wolf and Bear to Western Europe. Journal of Environmental Law, 22(3), 347-372, see part “Prohibitions and Derogations”. 123 123 European Commission. (2007). Guidance Document on the Strict Protection of Animal Species of Community Interest under the Habitats Directive 92/43/EEC. page 63. Retrieved from: http://ec.europa.eu/environment/nature/conservation/species/guidance/pdf/guidance_en.pdf 25

Effective conservation Finally, in accordance with Article 11, Member States have to guarantee that surveillance of the conservation status of Annex IV species is undertaken systematically and on a permanent basis. This is an essential ingredient of the strict protection system of Article 12. After all, effective conservation is only possible with detailed knowledge of the species, its breeding sites and resting places, and the potential threats it may face.124 With respect to the European wildcat, this obligation entails, inter alia, to monitor the hybridization rate of a population and to monitor how many feral domestic cats are living in proximity of a population.

2.5 Concluding remarks In sum, the European wildcat receives legal protection under the following international instruments: CBD, CITES, the Bern Convention and the EU Habitats Directive.

Although the language of the obligations of the former gives parties plenty discretion, it is not limitless. Allowing the European wildcat to go extinct on its territory would be hard to defend as an appropriate discharge of a party’s obligations.

CITES regulates the international trade in specimens of wild animals and plants so it does not threaten their survival. The European wildcat is listed in Appendix II: species that are not necessarily threatened with extinction but may become so if trade is not regulated. This means that, in order to trade in specimens of the European wildcat, a prior export permit needs to be granted. Besides, for species listed in Appendix II, trade for commercial purposes is allowed. However, for the contracting parties of the Bern Convention and for the Member States of the EU, trade in specimens of the species is prohibited by Article 6 of the Bern Convention, respectively by the EU Wildlife Trade Regulations.

Under the Bern Convention, parties are obligated to take requisite measures to maintain the population of the European wildcat at, or adapt it to, a level which corresponds in particular to ecological, scientific and cultural requirements. Although this ‘level’ is not precisely defined in more detail, it is safe to assume to be well above that at which the European wildcat is in danger of extinction – i.e. European wildcat populations should at least not be threatened at national level. Furthermore, the Convention prohibits all forms of deliberate capture, keeping and killing of the

124 Trouwborst, A. (2014). Exploring the Legal Status of Wolf-Dog Hybrids and Other Dubious Animals: International and EU Law and the Wildlife Conservation Problem of Hybridization with Domestic and Alien Species. Review of European Community & International Environmental Law, 23(1), see part ‘Addressing Hybridization: Active Species Protection’. 26 species. Besides, it protects the breeding and resting sites of the species against damage or destruction, and it protects against disturbance of the species, particularly during the period of breeding and rearing. Derogations are only possible for one of the reasons mentioned in the Convention, if there is no other satisfactory alternative to achieve the purpose in question, and derogation may not be detrimental to the survival of the population.

Under the Habitat Directive, Member States have to make sure to achieve the maintenance of a favourable conservation status for the European wildcat. A favourable situation needs to be reached and maintained, which needs to be defined based on the best available knowledge. Therefore, the obligation of a Member State is more than just avoiding extinction. Furthermore, the Directive stipulates that Member States have to take requisite measures to establish a system of strict protection for the European wildcat. Thereby specifically outlawing all forms of deliberate capture and killing of specimens of these species in the wild. In addition, it prohibits the deliberate disturbance of these species, particularly during the period of breeding, rearing and migration, and it protects the European wildcat against deterioration or destruction of breeding sites and resting sites. These, not only, have to be prohibited by legislation, but Member States have to take all necessary measures to ensure that the prohibitions in question are not violated in practice as well. Derogation of the species protection provision is only possible for one of the reasons mentioned in the Directive, if there is no satisfactory alternative, and derogation is not detrimental to the maintenance of the populations of the species at a favourable conservation status in their natural range.

The required system of prohibitions by the Convention and the Directive does not necessarily exhaust the obligation to take ‘appropriate and necessary’, respectively ‘requisite’ measures. The adoption and implementation of purely prohibitive measures may not be sufficient, and may not guarantee effective implementation of Article 6, respectively Article 12. In such cases, the Convention and the Directive require the adoption and implementation of preventive and mitigation measures.

Finally, with respect to area protection, the Convention and the Directive do not require the contracting parties, respectively the Member States to designate a site as an Area of Special Conservation Interest, respectively a Natura 2000 area for the European wildcat.

Chapter 3 The European wildcat and hybridization

As mentioned in the first chapter, the anthropogenic hybridization between the European wildcat and the domestic (feral) cat is a major threat for conservation of the species. Although the Bern Convention and the Habitats Directive not expressly deal with the issue of hybridization, they are important for addressing the issue.

But first it has to be said that the domestic cat does not fall within the scope of both regimes. Domestic cats do not qualify as ‘wild fauna’ and are not mentioned in the appendices of the Bern Convention, and they are not covered by the Habitats Directive as they do not qualify as ‘species of Community interest’.125 So what about wild-born hybrids – do they fall within the scope of both regimes? The answer to this question is of evident importance both from a legal and from a practical management perspective. Nevertheless, neither instruments state clearly that hybrids living in the wild are covered by the prescribed prohibitions.126 After answering this question, this chapter discusses several ways in which hybridization can be addressed. Thereby making references to policies that are taking place in addressing hybridization.

3.1 Hybrids: Included or excluded The purpose of both the Convention and the Directive is to protect, inter alia, the European wildcat, not to protect wildcat hybrids. An interpretation that would, at first sight, appear to conform to this state of affairs, would be to consider hybrids as not included within the scope of both regimes. If this interpretation were correct, however, European wildcats with even a remote domestic cat influence in their genetic signatures, would be excluded from protection.127 Besides, if hybrids were to be considered legally unprotected, it could lead to increased killing of the species, given the difficulty of distinguishing hybrids from genetically ‘pure’ European wildcats.128

An alternative interpretation would be to consider wild-born hybrids as included within the scope of both regimes. A good example of this reasoning can be found in the Large Carnivore Initiative for Europe (LCIE) Policy Support Statement on Response to hybridisation between wild wolves and

125 Trouwborst, A. (2014). Exploring the Legal Status of Wolf-Dog Hybrids and Other Dubious Animals: International and EU Law and the Wildlife Conservation Problem of Hybridization with Domestic and Alien Species. Review of European Community & International Environmental Law, 23(1), see part ‘The Legal Status of Hybrids: Passive Species Protection’. 126 Ibid. 127 Ibid. 128 Ibid. 28 domestic dogs.129 This statement expressly pleads for wolf-dog hybrids to receive the same legal status as wolves from hunters and the public in order to close potential loopholes for the irregular killing of wolves.130 Besides, the Guidelines for Population Level Management Plans for Large Carnivores131, to which the LCIE Policy support Statement on hybrids is annexed, have been endorsed by both the European Commission132 and the Bern Convention Standing Committee133.134 Although this concerns wolf-dog hybrids, the same reasoning can be used for wildcat hybrids. There is, moreover, further evidence to indicate that the latter interpretation is the correct one. First, in Germany, a hunter was prosecuted who had shot a wolf, allegedly because he took it for a dog. In court, his lawyer actually argued – unsuccessfully, in the end – that the animal was a hybrid and therefore unprotected.135 Thus, the court considered, in this case, that hybrids are to be considered covered. Second, the Standing Committee of the Bern Convention recommends the contracting parties to adopt the necessary measures to prevent wolves from being intentionally or mistakenly killed as wolf-dog hybrids. This is without prejudice to the careful government-controlled removal of detected wolf-dog hybrids from the wild by bodies entrusted with this responsibility by the competent authorities.136 Again, although this relates to wolf-dog hybrids, the same reasoning can be used, however, for wildcat hybrids. Thus, it can clearly be held that the scope of the strict protection requirements laid down in Article 6 of the Bern Convention and Article 12 of the Habitats Directive

129 LCIE. (n.d.) Policy Support Statements of the Large Carnivore Initiative for Europe (LCIE): Response to hybridisation betwlves and domestic dogs. Retrieved from: http://www2.nina.no/lcie_new/pdf/634991496387590327_LCIE_PSS_hybrids.pdf 130LCIE. (n.d.) Policy Support Statements of the Large Carnivore Initiative for Europe (LCIE): Response to hybridisation between wild wolves and domestic dogs. Page 2. Retrieved from: http://www2.nina.no/lcie_new/pdf/634991496387590327_LCIE_PSS_hybrids.pdf 131 European Commission. (2008). Guidelines for Population Level Management Plans for Large Carnivores. Retrieved from: http://ec.europa.eu/environment/nature/conservation/species/carnivores/pdf/guidelines_for_population_lev el_management.pdf 132 European Commission. (2008). Note to the Guidelines for Population Level Management Plans for Large Carnivores. Retrieved from: http://ec.europa.eu/environment/nature/conservation/species/carnivores/pdf/guidelines_for_population_lev el_management_ec_note.pdf 133 Bern Convention Standing Committee Recommendation No. 137 (2008). Retrieved from: https://www.coe.int/en/web/bern-convention/documents#{%2212475748%22:[0]} 134 Trouwborst, A. (2014). Exploring the Legal Status of Wolf-Dog Hybrids and Other Dubious Animals: International and EU Law and the Wildlife Conservation Problem of Hybridization with Domestic and Alien Species. Review of European Community & International Environmental Law, 23(1), see part ‘The Legal Status of Hybrids: Passive Species Protection’. 135 Ibid. 136 Bern Convention Standing Committee Recommendation No. 173 (2014). Retrieved from: https://www.coe.int/en/web/bern-convention/documents#{%2212475748%22:[0]} 29 should be interpreted as including wild-born hybrids. This does not, however, entail an obligation to achieve a certain conservation status for the hybrids.137

3.2 Addressing hybridization

3.2.1 Removing or neutering hybrids from the wild Thus, in order to remove a wildcat hybrid from the wild a derogation is required. Both provisions that regulate the derogation – Article 9 of the Bern Convention and Article 16 of the Habitats Directive – set out three conditions, which are essentially the same as we can see from the assessment in Chapter 2:

The reason for removing wildcat-cat hybrids from the wild will generally be to serve the interest of the wild European wildcat population itself. Derogation can thus be based on the first mentioned option in both Articles: ‘for the protection of flora and fauna’139 and ‘in the interest of protecting wild fauna and flora and conserving natural habitats’140.141

The analysis of whether there is no other satisfactory alternative presumes that a specific problem or situation exists and needs to be tackled, in this case the problem of hybridization. The competent national authorities are called upon to solve this problem or situation by choosing, among the possible alternatives, the most appropriate that will ensure the best protection of the species, e.g.

137 Trouwborst, A. (2014). Exploring the Legal Status of Wolf-Dog Hybrids and Other Dubious Animals: International and EU Law and the Wildlife Conservation Problem of Hybridization with Domestic and Alien Species. Review of European Community & International Environmental Law, 23(1), see part ‘The Legal Status of Hybrids: Passive Species Protection’. 138 Trouwborst, A. (2014). Exploring the Legal Status of Wolf-Dog Hybrids and Other Dubious Animals: International and EU Law and the Wildlife Conservation Problem of Hybridization with Domestic and Alien Species. Review of European Community & International Environmental Law, 23(1), see part ‘Addressing Hybridization: Derogating from Strict Protection’. 139 Bern Convention, Article 9(1). 140 Habitats Directive, Article 16(1)(a). 141 Trouwborst, A. (2014). Exploring the Legal Status of Wolf-Dog Hybrids and Other Dubious Animals: International and EU Law and the Wildlife Conservation Problem of Hybridization with Domestic and Alien Species. Review of European Community & International Environmental Law, 23(1), see part ‘Addressing Hybridization: Derogating from Strict Protection’. 30 this could involve alternative activities, processes or methods.142 Thus, in particular, the question could arise whether ‘capture’ would be a satisfactory alternative for killing the animal(s) involved. The consideration that wild-born hybrids should not be kept in captivity for animal welfare reasons may plead in favour of the lethal option.143 Another question that could arise, however, is whether capturing the hybrid in order to neuter the individual and to release it back in the wild, is to be considered as an alternative for killing. After all, the end-goal is the same. Surely, from an animal welfare perspective this seems to be a good alternative: capture the hybrid, neuter the hybrid and release it back in the wild. Besides, the best way to protect the species, at least with respect to the situation in Scotland, seems to point to neutering the wildcat hybrids. As we will see up further (3.2.4): if a wild-living cat is neutered and returned to the wild, it maintains a territory and keeps other (feral) cats from moving into the area. This allows European wildcats to breed only with other European wildcats. Thus, the second condition seems to be likely to stand in the way of derogations to remove a wildcat hybrid from the wild, since there is, based on the best available knowledge, a better solution that will ensure the best protection of the species.

The third condition, however, is unlikely to stand in the way of derogations to remove wildcat hybrids from the wild or to neuter them and release them back in the wild. After all, the removal or neutering of a wildcat-cat hybrid is generally understood to benefit rather than worsen the conservation status of the European wildcat populations.144

Thus, at least with respect to the situation in Scotland, the removal of wildcat hybrids from the wild seems to be not in line with the Bern Convention and the Habitats Directive since there is, based on the best available knowledge, a more effective alternative solution – i.e. neutering the hybrids, in order to release them back in the wild. However, the outcome of this analysis could be different – i.e. it can vary from situation to situation.

3.2.2 Captive breeding programme Another way to address hybridization is through a captive breeding programme to make a population (more) robust. By using isolated, wild-caught European wildcats living in areas of high risk, it is

142 European Commission. (2007). Guidance Document on the Strict Protection of Animal Species of Community Interest under the Habitats Directive 92/43/EEC. page 59. Retrieved from: http://ec.europa.eu/environment/nature/conservation/species/guidance/pdf/guidance_en.pdf 143 Trouwborst, A. (2014). Exploring the Legal Status of Wolf-Dog Hybrids and Other Dubious Animals: International and EU Law and the Wildlife Conservation Problem of Hybridization with Domestic and Alien Species. Review of European Community & International Environmental Law, 23(1), see part ‘Addressing Hybridization: Derogating from Strict Protection’. 144 Ibid. 31 possible to build up a population from which populations in the wild can be augmented, or release wildcats into areas where threats have been reduced.145

In Scotland, where the threat of hybridization is most critical, a conservation breeding for release programme is, as part of their national plan to save the European wildcat, ongoing.146 An agreement has been put in place whereby breeding, husbandry and animal transfers are being coordinated to ensure the most robust captive population. To increase the genetic integrity of the captive stock, a select number of new bloodlines from the wild will be added to the captive gene pool. Furthermore, it is essential that the facilities for the captive population adequately promote the key behaviours whilst developing the species’ physical and mental fitness, all of which are needed for survival in the wild. Over time, by breeding European wildcats under these conditions, key individuals with the right balance of age, behaviours and genetic diversity will be selected for reintroduction. Within Scotland, this programme could be seen as one of the last lifelines for the species.147

This coordinated management of a captive population that promotes physical, mental and genetic fitness to allow future release survivability, whilst preventing species extinction, is in line with the Bern Convention and the Habitats Directive. Namely, derogation can be based on the fourth mentioned option in both legal instruments – i.e. for the purposes of research and education, of repopulation, of re-introduction and for the necessary breeding. Besides, there is ‘no other satisfactory solution’, respectively ‘no other alternative’. And finally, derogation in this case has to be understood to benefit rather than worsen the conservation status of the European wildcat populations.

However, it goes without saying, that additional steps are needed to take place prior to re- introductions – including prey assessment surveys, habitat surveys, threat prevention and mitigation programmes and so on.148

145 Scottish Wildcat Action. (2015). Breeding for release: the wildcat insurance policy. Retrieved from: http://www.scottishwildcataction.org/latest-news/2015/september/breeding-for-release-the-wildcat- insurance-policy/ 146 Scottish Wildcat Action. (2016). Scottish breeding programme – what where and when?. Retrieved from: http://www.scottishwildcataction.org/latest-news/2016/february/scottish-wildcat-breeding-programme-what- where-and-when/; Scottish Wildcat Action. (2013). Scottish Wildcat Conservation Action Plan. Retrieved from: http://www.scottishwildcataction.org/about-us/ 147 Scottish Wildcat Action. (2016). Scottish wildcat conservation breeding for release a lifeline for the species?. Retrieved from: http://www.scottishwildcataction.org/latest-news/2016/december/scottish-wildcatconservation-breeding-for-release-a-lifeline-for-the-species/ 148 Ibid. 32

3.2.3 Connecting populations In the Netherlands, at least two of the five tagged European wildcats are genetically pure. The other three have not been analysed yet.149 Thus, it seems to be that there is no sign of hybridization in this population so far. According to ARK Natuurontwikkeling, this can be explained by way the population of the Netherlands is connected with the populations of the Eifel (Germany) and the Ardennes (Belgium) – in contrast to the isolated populations of the Highland Tiger in Scotland.150 When there are sufficient potential wild partners to mate with, a European wildcat is not likely to choose a (feral) domestic cat as a mating partner. 151 In other words, in a robust population with a wide gene pool hybridization between the European wildcat and the (feral) domestic cat is likely to occur. Thus, to prevent hybridization it is important to keep or make a population robust. Connection between the different populations seems to be, in this regard, beneficial for the species and prevent or at least reduces the threat of hybridization.

3.2.4 Reducing the risk of (feral) domestic cats Next to the above, another way to address the issue of hybridization is to reduce the risks from (feral) domestic cats.

Feral domestic cats Obviously, the removal or neutering of feral domestic cats will reduce the risk of hybridization. According to research, the removal and the neutering (trap-neuter-release) of feral domestic cats within an isolated population – where no immigration takes place, are equally effective. With regard to populations where migration takes place, the lethal option was more effective, however.152 Nevertheless, according to Dr Roo Campbell, priority areas manager for Scottish Wildcat Action (the national protect to save the European wildcat), the best way to protect the species is neutering and vaccinating the feral domestic cats. If a wild-living cat is neutered and returned to the wild, it maintains a territory and keeps other feral cats from moving into the area. This allows wildcats to only breed with other wildcats.153 In addition, Scottish Wildcat Action hopes that this method will reduce the risk of disease from migrating feral cats as well (as noted above, another threat for the

149 ARK Natuurontwikkeling. (2015). Soortbeschermingsplan Wilde kat, page 14. Retrieved from: https://www.ark.eu/sites/default/files/media/Soortbeschermingsplannen/wilde_kat_LR_def.pdf 150 Ibid, page 21. 151 Ibid, page 21. 152 Alterra Wageningen UR. (2011). Huiskatten in natuurgebieden, page 34. Retrieved from: http://edepot.wur.nl/282333; Schmidt, P.M., Swannack, T.M., Lopez, R.R., and Slater, M.R. (2009). Evaluation of euthanasia and trap-neuter-return (TNR) programs in managing free-roaming cat populations. Wildlife Research, 36, 117-125. 153 Scottish Wildcat Action. (2017). More than 100 cats trapped in fight to save endangered Scottish wildcats. Retrieved from: http://www.scottishwildcataction.org/latest-news/2017/august/more-than-100-cats-trapped- in-fight-to-save-endangered-scottish-wildcats/ 33 species). For example, eighty-two of the wild-living cats were trapped and neutered in the Strathbogie Wildcat Priority Area. According to Scottish Wildcat Action, such a high number will have an immediate impact on the risks to the European wildcats there.154 Thus, it seems to be that neutering feral domestic cats (instead of culling them) is the best practice.

Household cats So what about domestic cats that are living in the proximity of European wildcat populations? They constitute a risk for the European wildcat as well. As noted in the introduction, occasionally household cats go wild, mate and create colonies of feral cats. Besides, household cats can mate with hybrids or full genetic European wildcats as well. Therefore, one of the key messages Scottish Wildcat Action expresses, is the importance of neutering domestic cats. They urge everyone to neuter their pet, to micro-chip and vaccinate it. Obviously, the more domestic cats that are neutered the better news it is for the European wildcat. For this purpose, the Scottish Wildcat Action’s Supercat campaign has been established to raise awareness.155 Besides, neutering domestic cats is not only beneficial for the survival of the European wildcat, it has many other benefits too. For example, a neutered cat will fight less and has fewer injuries; neutered cats also have lower rates of some cancers and tumours, and they will wander less.156 Although neutering a household cat costs between £50 and £90 within Scotland, financial help is available from cat welfare charities and, if household cat owners live in a wildcat priority area, they may be able to receive a free neutering voucher from Scottish Wildcat Action.157 In the Netherlands, ARK Natuurontwikkeling also recommends to neuter domestic cats to prevent an increase of feral domestic cats to protect the European wildcat.158

The above, however, is voluntary. Thus, the effect completely depends on the will of the housecat owners whether or not they neuter their beloved housemate. Nevertheless, it can be argued that there should be an obligation, at least for domestic cat owners that live in proximity of an European wildcat population, to neuter household cats. For example, in Belgium there is a law (Besluit van 23.02.18 over de sterilisatie van kitten)159, that came into force on the first of April 2018, that obliges

154 Ibid. 155 Scottish Wildcat Action. (2017). A Tail of Two Kitties – a look at domestic cats and Scottish wildcats. Retrieved from: http://www.scottishwildcataction.org/latest-news/2017/october/a-tail-of-two-kitties-a-look- at-domestic-cats-and-scottish-wildcats/ 156 Scottish Wildcat Action. (n.d.) Frequently asked questions. Retrieved from: http://www.scottishwildcataction.org/supercat/frequently-asked-questions/ 157 Ibid. 158 ARK Natuurontwikkeling. (2015). Soortbeschermingsplan Wilde kat, page 21. Retrieved from: https://www.ark.eu/sites/default/files/media/Soortbeschermingsplannen/wilde_kat_LR_def.pdf 159 Besluit van 23.02.18 over de sterilisatie van kitten, 2018. Retrieved from: https://www.lne.be/sites/default/files/atoms/files/BVR%2023%20febr%202018.pdf 34 citizens to neuter their cats before the age of five months, to halt the increase in numbers of strays and cats collected in shelters.160 Although the purpose is different, it serves to protect the European wildcat as well since it tackles the problem of hybridization at its roots. Besides, according to Trouw, a Dutch newspaper, figures show that the obligation is already successful.161

3.2.5 Mandatory Addressing hybridization through the above mentioned preventive and mitigation measures is in conformity with the obligations of States under the Bern Convention and the Habitats Directive, and may be essential in order to comply with those obligations. Whether and to what extent such active measures are necessary will obviously vary from situation to situation.162

With respect to the situation in Scotland, it is safe to assume that all the above mentioned preventive and mitigation measures – except the measure of connecting different populations – should be considered mandatory in order to comply with the obligations of States under the Bern Convention and the Habitats Directive. After all, the passive species protection provisions are clearly not sufficient to address the problem of hybridization. Thus, active species protection measures are necessary. Besides, the purpose of these instruments is to protect, inter alia, the European wildcat. Whereby conservation interests outweigh economic and recreational interest in case of conflict. Within Scotland a captive breeding programme is ongoing and wild-living cats that are not genetically pure European wildcats near priority areas are being neutered. Nevertheless, there is no obligation to neuter household cats. The policy with respect to household cats is merely the promotion of responsible cat ownership within priority areas. By obligating household cat owners to neuter their pet, however, the problem of hybridization will be tackled at its roots. Making such policy vital for the protection of the species on a long-term basis. Thus, in order to comply with the obligations of States under the Bern Convention and the Habitats Directive, it is safe to assume that the measure of neutering household cats should be considered mandatory.

Although there are no signs of hybridization in the Netherlands so far, the population is far from being ‘favourable’. Policies that are taking place in the Netherlands are mostly aimed at connecting and protecting the current habitat of the species with other potential habitats in order to make the

160 The Guardian. (2010). Belgium plans to neuter most cats as feline population explodes. Retrieved from: https://www.theguardian.com/world/2010/sep/03/blegium-plans-to-neuter-cats; Departement Omgeving. (n.d.). Sterilisatie kitten: verplicht. Retrieved from: https://www.lne.be/sterilisatie-katten-verplicht 161 Trouw. (2018). Belgische dierenasielen lopen leeg door verplichte kattensterilisatie. Retrieved from: https://www.trouw.nl/home/belgische-dierenasielen-lopen-leeg-door-verplichte-kattensterilisatie~ad10cef8/ 162 Trouwborst, A. (2014). Exploring the Legal Status of Wolf-Dog Hybrids and Other Dubious Animals: International and EU Law and the Wildlife Conservation Problem of Hybridization with Domestic and Alien Species. Review of European Community & International Environmental Law, 23(1), see part ‘Addressing Hybridization: Active Species Protection’. 35 population more robust.163 Which, as noted above, is important to prevent hybridization. A captive breeding programme, which can be considered as one of the last lifelines for the species, does not take place within the Netherlands. It is safe to assume that the absence of such a programme is in conformity with the obligation of States under the Bern Convention and the Habitats Directive since the problem of hybridization does not constitute a high risk as in Scotland. Although ARK Natuurontwikkeling recommends to neuter household cats164, there isn’t a domestic law that obligates it. However, to effectively address and prevent hybridization on a long-term basis, it is still necessary, in order to comply with the Bern Convention and Habitats Directive, for the same reasoning as above, to obligate household cat owners to neuter their pet. Moreover, the Dutch national action plan fails to address the risk of feral cats. To effectively prevent hybridization and in order to comply with the legal instruments, it is necessary to address the issue of feral cats as well.

3.3 Concluding remarks In sum, the scope of the strict protection requirements laid down in Article 6 of the Bern Convention and Article 12 of the Habitats Directive should be interpreted as including wild-born wildcat hybrids in order to prevent European wildcats from being intentionally or mistakenly killed as wildcat hybrids. This means that, in order to remove or capture a wildcat hybrid from the wild, a derogation is required. With respect to the situation in Scotland, there seems to be (based on the best available knowledge) an alternative solution – that ensures the best protection of the species - for removing a wildcat hybrid from the wild – i.e. capturing a wildcat hybrid, in order to neuter the individual, and release it back in the wild. Thus, the removal of wildcat hybrids from the wild, at least with respect to the situation in Scotland, seems to be not in line with the Bern Convention and the Habitats Directive. Nevertheless, the outcome of this analysis could be different – i.e. it can vary from situation to situation.

Other ways to address hybridization can be through a captive breeding programme. Such a programme can be regarded as one of the last lifelines for the species. Furthermore, connecting different populations where possible seems to reduce the threat of hybridization. And finally, hybridization can be addressed through reducing the risk of (feral) domestic cats. With respect to feral domestic cats, neutering instead of culling individuals seems to be the best practice. When a wild-living cat is neutered and returned to the wild, it maintains a territory and keeps other feral cats or wildcat hybrids from moving into the area. This allows European wildcats to breed only with other European wildcats. With respect to household cats, it is important to neuter them as well. This way,

163 ARK Natuurontwikkeling. (2015). Soortbeschermingsplan Wilde kat, page 24. Retrieved from: https://www.ark.eu/sites/default/files/media/Soortbeschermingsplannen/wilde_kat_LR_def.pdf 164 Ibid, page 21 36 the numbers of feral domestic cats can be limited and the problem of hybridization will be tackled at its roots.

Chapter 4 Conclusion

This chapter proceeds to discuss the central research question and main topic of this dissertation:

To provide an answer for the first part of this question the legal framework of the European wildcat has been assessed in chapter 2. In section 4.1, the most important findings of this assessment will be summarized. In section 4.2, the second part of the central research question, which is assessed in chapter 3, will be answered.

4.1 Legal framework of the European wildcat The European wildcat within Europe is covered by several legal instruments: CBD, CITES, the Bern Convention and the Habitats Directive. Of these, the Bern Convention and the Habitats Directive provide the most comprehensive protection for the species within Europe.

CBD Although the language of the obligations of the CBD gives parties plenty discretion, it is not limitless. Allowing the European wildcat to go extinct on its territory would be hard to defend as an appropriate discharge of a party’s obligations.

CITES CITES regulates the international trade in specimens of wild animals and plants so it does not threaten their survival. The European wildcat is listed in Appendix II: species that are not necessarily threatened with extinction but may become so if trade is not regulated. This means that, in order to trade in specimens of the European wildcat, a prior export permit needs to be granted. However, for the contracting parties of the Bern Convention and for the Member States of the EU, trade in specimens of the species is prohibited by Article 6 of the Bern Convention, respectively by the EU Wildlife Trade Regulations.

The Bern Convention and the Habitats Directive The objective of the Bern Convention aims to conserve wild flora and fauna and their natural habitats, especially those species and habitats whose conservation requires the co-operation of several States, and to promote such co-operation. To achieve this objective, Article 2 obligates the contracting parties to take requisite measures to maintain the population of wild flora and fauna at, or adapt it to, a level which corresponds in particular to ecological, scientific and cultural

38 requirements. This population standard constitutes an absolute minimum, which can safely be assumed to be well above that at which a species is in danger of extinction – i.e. Article 2 requires that the populations should at least not be threatened at national level. Nevertheless, in some cases, it is possible to look at the transboundary level of a population instead of at the national level. This requires a transboundary action plan that sets goals and agreements on measures. However, in case of the European wildcat, effective conservation is not entirely depended on transboundary cooperation. Making the need for such plan lesser in comparison with Europe’s large carnivores.

In order to achieve the above objectives, the Convention and the Directive provide two main instruments: area protection and species protection. With respect to species protection, the European wildcat is listed in Appendix II (strictly protected fauna species), respectively in Annex IV (species of Community interest requiring strict protection). For species listed in Appendix II, Article 6 of the Convention requires contracting parties to take appropriate and necessary legislative and administrative measures to ensure the special protection of the European wildcat. For animal species listed in Annex IV, Article 12 of the Directive requires to take requisite measures to establish a system of strict protection. For both the Convention and the Directive, this entails an obligation to prohibit, inter alia, the deliberate killing and capturing of the species. Furthermore, it prohibits the deliberate disturbance of the species, particularly during the period of breeding, rearing and hibernation, and it prohibits the deterioration or destruction of breeding sites or resting places.

This required system of prohibitions does not necessarily exhaust the obligation to take ‘appropriate and necessary’, respectively ‘requisite’ measures. The adoption and implementation of purely prohibitive measures may not be sufficient, and may not guarantee effective implementation of Article 6 of the Convention, respectively Article 12 of the Directive. In such cases, both instruments require the adoption and implementation of preventive and mitigation measures. Whether and to what extent such active measures are necessary will vary from situation to situation.

It is possible to derogate from Article 6 of the Convention, respectively Article 12 of the Directive. Both provisions that regulate the derogation – Article 9 of Convention and Article 16 of the Directive – set out three conditions, which are essentially the same:

4.2 Addressing hybridization First of all, the scope of the strict protection requirements laid down in Article 6 of the Bern Convention and Article 12 of the Habitats Directive should be interpreted as including wild-born wildcat hybrids in order to prevent European wildcats from being intentionally or mistakenly killed as wildcat hybrids. This means that, in order to remove or capture a wildcat hybrid from the wild, a derogation is required. With respect to the situation in Scotland, there seems to be (based on the best available knowledge) an alternative solution – that ensures the best protection of the species - for removing a wildcat hybrid from the wild – i.e. capturing a wildcat hybrid, in order to neuter the individual, and release it back in the wild. Thus, the removal of wildcat hybrids from the wild, at least with respect to the situation in Scotland, seems to be not in line with the Bern Convention and the Habitats Directive. Nevertheless, the outcome of this analysis could be different – i.e. it can vary from situation to situation.

However, for addressing hybridization, the passive species protection provisions are not sufficient. Thus, active species protection measures are necessary – i.e. preventive and mitigation measures. Such measures can entail a captive breeding programme, which can be regarded as one of the last lifelines for the species. Furthermore, connecting different populations where possible, seems to reduce the threat of hybridization. And finally, hybridization can be addressed through reducing the risk of (feral) domestic cats. With respect to feral domestic cats, neutering instead of killing individuals seems to be the best practice. When a wild-living cat is neutered and returned to the wild, it maintains a territory and keeps other feral cats or wildcat hybrids from moving into the area. This allows European wildcats to breed only with other European wildcats. With respect to household cats, it is important to neuter them as well. This way, the numbers of feral domestic cats can be limited, and the problem of hybridization will be tackled at its roots.

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