Libera Caccia Umbria re-proposes its commitment to the promotion of hunting in derogation in the Region.
Also for the 2014/2015 hunting season the ANLC will re-propose the request to the Umbria Region to prepare all the necessary Acts in order to regulate the withdrawal in derogation. In collaboration with the National Wild Fauna Legislative Technical Office, the drafting of a complete document in all its parts is in fact close to arrival, which will take into account the recent changes to Art. 19 bis of Law 157/92 and the indications of the European Commission regarding the use of the levy in derogation according to article 9 paragraph 1 letter c). Starting from the latest judgments of the European Court of Justice, it can be noted that the main problem to take advantage of the exemption levy is above all that of the reasons for the use of this practice, in addition to this, however, observations are also made on the methods of carrying out the exercise same as the exemption. Starting precisely from these last observations, and then returning to the real "core" of the problem, the Libera Caccia Umbria in concert with the National Legislative Technical Office believes that it has found the right way for a full application of the levy in derogation according to letter c) satisfying all the requests in question:
- PERSONS ENABLED TO WITHDRAWAL IN DEROGATION: Since hunting by way of derogation is considered a totally exceptional form, it is not possible to authorize all hunters to take the same. In order to have a clear and void-free picture and, above all for an exact calculation of the modest quantity of wild animals that can be taken, it is mandatory that the hunter who intends to participate in the withdrawal in derogation presents a specific request within a set time (indicatively July / August) in order to identify who and how many hunters are to be authorized.
- PERIOD OF WITHDRAWAL IN DEROGATION: The hunting of certain species under derogation obviously cannot be extended to the entire period of the hunting season, but must be reduced to a short and well-defined time frame. The collection of some species must not exceed 60 days and should coincide with the migration period, safeguarding the wintering periods.
- PLACES OF WITHDRAWAL IN DEROGATION: Another condition that must be met for the use of the exemption levy is the so-called "circumstance of place". Until now, the ATCs have been considered as detailed places suitable for carrying out the derogation. Already in the previous requests made by our Association, in agreement with the National Legislative Technical Office, the space dedicated to each hunter was further reduced, considering the entire territory of the Territorial Hunting Area too large to guarantee adequate control and, above all, , to meet the criteria of the legislation in terms of derogation. In this regard, it was proposed that the hunter who requests it at the time of submitting the appropriate application should indicate a maximum number of 3 Municipalities where it can be carried out, thus reducing the "circumstance of place". In this way, the bodies in charge would have a complete picture in order to manage the human resources in charge of control.
- METHOD OF WITHDRAWAL IN DEROGATION: In order to comply with the legislation governing the use of derogations, it is also necessary to indicate the hunting methods. The collection must take place exclusively through the fixed and temporary posting in order to ensure the timely identification of the person participating in the collection by the Police Bodies. It is therefore not possible, for obvious reasons, to predict the modality of the wandering hunt.
- CHECK OF THE CARNERS: A fundamental part of the legislation on the subject of derogation is that of the numerical control of culled animals. The Regions that in the past have made use of the derogation regime have opted for the marking of the animals at the end of the hunting day. This solution does not in any way satisfy the rules governing the matter: once the garment is knocked down it must be promptly marked on a specific form.
However, in some judgments of the European Court it is indicated as necessary the "timely" communication of the animals withdrawn in order not to exceed the assigned quota. We believe that the experience that took place in the State of Malta, where the immediate communication of the downed head was via an SMS sent to a computer system is too expensive and difficult to apply.
The most obvious solution is borrowed from the experience of selection hunting where, as soon as a sample is taken, a special "stamp" is affixed to the downed head. In the specific case, in the case of birds, the most feasible way would be to provide all subjects authorized to take in derogation, a number equal to the quantity of foldable heads of rings to be affixed to the paw of the bird. By doing so, even the control bodies will be able to immediately check whether the hunter is in good standing or not. After this examination of some of the main needs to be carried out for hunting in derogation we must return to the major problem to apply this sampling methodology, or the reasons that lead to use Article 9 paragraph 1 letter c.
Until now, the reasons used by the Lombardy and Veneto regions to be able to hunt some species have fallen on the “hunting traditions” of the Regions. In the most recent observation that the European Commission has made regarding exceptions for our country, these reasons are considered inadequate to be able to carry out hunting in derogation and therefore do not satisfy the fundamental criterion of the derogation itself.
After a careful analysis of past European judgments up to the most recent, we have noted how several times the jurisprudence has reiterated:
- Art. 3.5.21 - Article 9 (1) (c) authorizes the use of derogations to allow for the capture, keeping or other judicious use of certain birds.
- Art. 3.5.22 … .However, it can be concluded that the derogation in question may also apply to other bird species for which "measured use" is justified. In case C-182/02, the Court held that the condition relating to the use of "certain birds in small numbers" cannot be satisfied "if the hunting authorized by way of derogation does not guarantee the maintenance of the population of the species concerned at a satisfactory level ". It is therefore difficult to imagine cases in which the derogation provided for in Article 9 (1) (c) is justified for a species characterized by an unsatisfactory conservation status.
- Art. 3.5.23 - An essential question is whether hunting can constitute a measured use for the purposes of Article 9 (1) (c). The issue was addressed by the Court of Justice in its judgment in case C-182/02 Ligue pour laprotection des oiseaux and others. Based on previous jurisprudence, the Court stated: “From the foregoing it emerges that the hunting of wild birds practiced for amateur purposes during the periods indicated in art. 7, no. 4, of the directive can correspond to a measured use authorized by art. 9, no. 1, lett. c), of the directive itself, as well as the capture and transfer of wild birds even outside the hunting season for the purpose of their detention to be used as live decoys or for amateur purposes in fairs and markets "
- Art. 3.5.24 It is clear from this same judgment that hunting for recreational purposes does not automatically constitute measured employment. Having noted the need for a derogation to ensure the maintenance of the population of the species concerned at a satisfactory level, the Court observed that: "Unless this condition is met, the use of birds by recreational hunting cannot, in any case, be considered as a measured and, therefore, lawful use within the meaning of the eleventh recital of the directive ".
- Art. 3.5.25 The Directive does not clarify what is meant by “measured uses”, although it is clear from Article 9 (1) (c) that this expression may include the capture and keeping of certain birds.
As is evident, the European Commission and the Court of Justice focus on one detail: recourse to the derogation for letter c) to allow the hunting of certain wild species is considered a viable way, provided that the protection criteria are respected and are species with a satisfactory conservation status. In the judgment C-182/02 Ligue pour laprotection des oiseaux and others another concept is also reiterated:
- ... As for the first condition mentioned in the previous point, it should be emphasized that the same cannot be considered satisfied when the hunting period permitted by way of derogation coincides unnecessarily with the periods in which the directive intends to establish particular protection (see, to that effect, Commission v Italy, cit., point 39). Such a necessity would be lacking, in particular, if the sole purpose of the measure authorizing hunting by way of derogation were to extend hunting periods for certain bird species on territories already frequented by them during the hunting periods established in accordance with 'art. 7 of the directive.
The above is a fundamental step in our opinion: the use of the derogation outside the protection periods and to increase the collection of a specific species beyond the normal course of the hunting season is not admissible as a reason. For Italy this problem is lacking as any request to be able to take advantage of the derogation regime would take place in the post-nuptial review period and in the hunting season still in progress.
A reason that would certainly help to support the application of the derogation is the fact that the possible withdrawal of species such as the finch and brambling, which we recall are two species considered in a satisfactory conservation status (the first is estimated at 130 - 240 million breeding pairs and the second 13 - 22 million breeding pairs) could ease the hunting pressure during the season towards species such as the Lark, the Lapwing and the Turdids.
We will therefore provide the Region of Umbria with our documentation and our support, so that it can transmit the Acts to the State-Regions Conference for the search for an agreement with the Hunting Departments sensitive to the "derogations" problem, which will allow them to definitively close the disputes that prevent the hunting world from being able to safely exercise legitimate and traditional forms of hunting.
21 May 2014
National Free Hunting Association