Open letter to President Klaus Iohannis

To: President of Romania Klaus Iohannis

Mr President,

We ask you not to promulgate Bill 333/2021 for the following reasons:

As to the facts. The brown bear (Ursus actos) is a strictly protected species under Habitats Directive 92/43/CEE:

Annex II – ANIMAL AND PLANT SPECIES OF COMMUNITY INTEREST WHOSE CONSERVATION REQUIRES THE DESIGNATION OF SPECIAL AREAS OF CONSERVATION and

Annex IV – ANIMAL AND PLANT SPECIES OF COMMUNITY INTEREST IN NEED OF STRICT PROTECTION

At national level, the Habitats Directive was transposed in Romania through OUG 57/2007, which incorporated Annex II and Annex IV of the Habitats Directive; these annexes apply directly in national law and are therefore binding.

This species therefore needs special areas of conservation to be designated and a legal regime of strict protection to be established.

The OUG approved through PL 333/2021 mentioned above regulates immediate intervention to prevent and combat attacks by brown bears (Ursus arctos) on citizens and their property within the built-up areas of settlements, through capture/relocation or removal by shooting or euthanasia.

We consider that this law flagrantly contravenes European law by unlawfully allowing bears to be killed by shooting/euthanasia even outside built-up areas, that is, in their natural environment (the Habitats Directive, whose provisions are also transposed into national law through OUG 57/2007)

A simple reading of this law shows that it is liable to favour trophy hunting, allowing bears to be shot or euthanised on subjective or unclear and open-to-interpretation criteria, without authorisation or intervention by any environmental authority at any stage of the established procedure.

The law amended the original ordinance by adding the possibility of discretionary killing of bears outside built-up areas, regardless of their stage of biological development, in breach of the Habitats Directive.

Moreover, although Order 625/2018 provides an action plan for conserving the brown bear population, these measures are incompatible with the OUG and the law approving it, effectively resulting, through adoption of the OUG, in the tacit repeal of this order. The OUG also contains no conservation measures or management plan aimed at conserving the bear population.

Order 625/2018 has never been implemented, no measures have been taken to protect this species, and the explanatory memorandum contains false information in this regard. It also falsely states that the bear population has increased, although no scientific studies certifying this have yet been completed. The increased presence of bears may result from food shortages and shrinking natural habitats, rather than any spectacular growth in their population.

We therefore ask you to return the law to Parliament for reconsideration, so that OUG 81/2021, which breaches European law, is rejected.

The measures needed to protect the bear species and human communities are correctly provided for and regulated by Order 625/2018, with lawful and sufficient measures even where a person’s life, bodily integrity and property are endangered. These measures are taken by specialists, not mayors, and under the supervision of environmental authorities, which is mandatory for compliance with European law.

Analysis of OUG 81/2021 approving immediate intervention methods to prevent and combat attacks by brown bears on people and their property within the built-up areas of settlements, and amending and supplementing certain legislative acts

Art. 5 of the OUG referred to above:

(1) Intervention involving bears within the built-up areas of settlements is carried out gradually, starting with the method of driving them away.

(2) Where a bear that has been driven away returns repeatedly, the intervention team proceeds to tranquillise and relocate it. Tranquillisation is performed by the authorised veterinarian, supported by the Manager’s specialist technical staff.

Paragraph (2) provides that where the bear driven away returns repeatedly, the intervention team proceeds to tranquillise and relocate it. Although this paragraph establishes a criterion for taking this measure, namely that the bear returns repeatedly, the OUG does not define this term, leaving assessment of what constitutes “repeatedly” to the intervention team.

Moreover, the issue arises of identifying the bear to determine the repeated nature of its return from the place from which it was driven away. How does the intervention team establish whether the bear initially driven away is the same bear that “returns” from the place from which it was driven away? We consider this criterion subjective and insufficiently detailed, potentially leaving intervention involving bears to arbitrary discretion.

Intervention by driving away, as defined in Art. 1, para. (3), point d, means “immediate, specialised human action to drive away by various means one or more brown bears, regardless of their stage of biological development or sex, present within the built-up areas of settlements”

We note that driving a bear away is not accompanied by fitting a tracking device or taking biological samples that could be compared with biological samples from the bear that supposedly “returns” from the place from which it was driven away, to establish the repeated nature of its return. We therefore consider this criterion lacking in objectivity.

Next, paragraph (3) of the same article states that “Tranquillised and relocated bears are marked and monitored by fitting GPS collars. Collars are fitted within the budget and stocks allocated for this purpose at the Ministry of the Environment, Waters and Forests.”

This paragraph sets an objective criterion for marking and monitoring tranquillised and relocated bears, thus after the measure under Art. 5, para. (2), namely fitting GPS collars within the stocks allocated for this purpose at the Ministry of the Environment, Waters and Forests. We consider this measure lacking in transparency because it identifies no subsequent act specifying the budget and stock limits or methodological rules for implementation. We consider that the Ministry of the Environment, Waters and Forests does not have the necessary financial resources that must be allocated to such equipment.

Paragraph (4) of the same article provides that:

“The bear is removed by euthanasia or shooting in the following situations:

1. a) if interventions using the methods of driving away and tranquillisation/relocation fail to produce results;
2. b) if the safety and security of citizens or of any kind of property belonging to them are endangered;
3. c) if the safety and security of intervention team members are endangered;
4. d) where the bear concerned is injured during intervention and no other solutions are identified under this Emergency Ordinance;
5. e) if the bear concerned is caught in an unauthorised trap and no other solutions are identified under this Emergency Ordinance;
6. f) if the bear concerned has injuries incompatible with life”

First, point a allows euthanasia/shooting where interventions involving driving away/tranquillisation fail to produce results. The OUG does not define the absence of results or provide an objective criterion for observing this outcome, nor does it clearly identify who is to determine whether the measures produced results. Annex 2 of this OUG states that a report detailing the form of intervention and its results will be drawn up afterwards, without specifying who will write it or the criteria for classifying the results obtained.

Point b, clause 2 of the same article, indicates a disproportionate solution: euthanising or shooting the bear where any kind of property belonging to citizens is endangered.

We consider that killing a bear, a species strictly protected at Community level under the Habitats Directive and nationally under OUG 57/2007, where “property of any kind” is endangered (so the measure is not even established for a concrete, tangible outcome, but merely for the creation of a state of danger) is disproportionate and seriously breaches European rules, which allow protected species such as the brown bear to be killed only under very strict conditions, as we will explain throughout this paper.

Points d and e give the intervention team the right to euthanise/shoot bears on subjective criteria that cannot be verified later. Point d allows a bear to be killed if it is injured during intervention and no other solutions are identified under the OUG referred to above. Consequently, identifying other solutions is not a genuine possibility (the options provided by the OUG are driving away, intervention for relocation and killing).

Moreover, point e allows a bear to be killed if it is caught in an unauthorised trap and no other solutions are identified. This provision is liable to encourage illegal bear hunting, especially given the local composition of the intervention team. In some cases, the person who placed an unauthorised trap might also be part of the intervention team, while the OUG identifies neither solutions nor specialists.

Art. 7, para. (1), provides that this OUG establishes the system for monitoring rapid interventions involving bears within the built-up area of a settlement, through capture/relocation or removal by shooting or euthanasia. Paragraph 2 of the same article states that “The monitoring system referred to in para. 1 is established on the basis of the national register of captures/relocations/removals by shooting or euthanasia, the model for which is set out in Annex No. 4 to this Emergency Ordinance.” Art. 9 goes on to state that “County and regional environmental protection agencies have the following responsibilities and duties: a) designate a contact person for accidental captures and killings;”.

On examining the OUG and its annexes, we could find no mention of recording accidental captures and killings of bears in the rapid intervention monitoring system. The only mention is in Art. 9, where the duties of county and regional environmental protection agencies include designating a contact person for accidental captures and killings. This raises the question: what happens to bears killed accidentally? Who will be held responsible, how, and where will these data be recorded? The OUG does not specify. All this creates serious uncertainty about the legality of possible “accidental” killings and their transparent recording.

OUG 57/2007 provides in Art. 36 that the competent environmental protection authority organises the system for monitoring accidental captures and killings of all bird species and of the species listed in Annexes No. 4 A and 4 B. Paragraph (2) of the same article provides that:

“On the basis of information obtained through the monitoring system referred to in para. (1), the central public authority for environmental and forest protection takes additional research or conservation measures to ensure that accidental killings or captures do not have a very serious negative impact on the species concerned.”

The provisions of the OUG therefore do not establish additional research or conservation measures to ensure that accidental killings or captures do not have a very serious negative impact on the species concerned. In its current form, we consider that the OUG will lead to the decimation of the bear population, encouraging trophy hunting and the bear meat market.

Moreover, Art. 6, para. (2), of the criticised ordinance allows female bears with cubs to be shot, with the cubs to be relocated urgently.

Art. 12, para. (3), states that “The carcass of a bear removed by shooting belongs to the Manager who carried out the removal and may be used according to the rules in force established by the National Sanitary Veterinary and Food Safety Authority, or will be destroyed by incineration if the intervention was carried out by the Forest Guard or the bear was removed by euthanasia”

We consider that such a provision is liable to encourage hunting because it allows the manager to keep the carcass of the bear killed by shooting.

Furthermore, under Art. 1, para. (3), point a), the intervention team consists of:

1. a) the mayor/deputy mayor of the administrative-territorial unit in whose jurisdiction the incident occurred, appointed to the local emergency situations committee under Art. 12, para. (2), of Government Emergency Ordinance No. 21/2004 on the National Emergency Management System;
2. b) personnel from the territorially competent specialised gendarmerie units and/or subunits, on duty in the area where the bear’s presence was reported;
3. c) specialist technical staff employed by the Manager, who has concluded an on-call contract with the administrative-territorial unit to provide the specialist services under this Emergency Ordinance;
4. d) the authorised veterinarian.

We have serious doubts about the competence of the mayor/deputy mayor of the administrative unit where the incident occurred to lead a specialist team for intervention involving bears.

The OUG provides for a series of necessary investments to be made available to the intervention team:

Rifles, tranquillisers, vehicles, cages and microchipping systems, which it states will be provided within budget limits. However, it does not specify whether resources exist in the state budget or where the funds will come from. Consequently, animals will be killed directly for lack of financial resources, an unconstitutional way of adopting legislation that also derogates from the fundamental rights guaranteed by Romania’s Constitution.

The bear is a strictly protected species under the Habitats Directive. The EU Habitats Directive lists the bear among strictly protected species whose conservation requires the designation of special areas of conservation (Annex IV), and Art. 12 of the Habitats Directive prohibits killing these animals.

The Court of Justice of the European Union has established in its case-law that a directive has direct effect if its provisions are unconditional and sufficiently clear and precise (judgment of 4 December 1974, Van Duyn).

Under Art. 12 of this Directive:

(1) Member States take the necessary measures to establish a system of strict protection for the animal species listed in Annex IV, point (a), including ursus arctos, meaning the brown bear, within their natural range, prohibiting:

(a)

any form of deliberate capture or killing of specimens of these species in the wild;

(b)

deliberate disturbance of these species, particularly during breeding, nesting, hibernation and migration;

(c)

deliberate destruction or collection of eggs from the wild;

(d)

deterioration or destruction of breeding or resting sites.

(2) For these species, Member States prohibit keeping, transporting, selling or exchanging, and offering for exchange or sale, specimens taken from the wild, except those taken legally before this Directive was implemented.

(3) The prohibitions under paragraph (1), points (a) and (b), and paragraph (2) apply to all stages of life of the animals covered by this article.

(4) Member States establish a system for monitoring accidental capture and killing of animals belonging to the species listed in Annex IV, point (a). On the basis of the information obtained, Member States take additional research or conservation measures to ensure that accidental killings or captures do not have a very serious negative impact on the species concerned.

The same Directive clearly establishes in Art. 16 the conditions for derogations from Art. 12, 13, 14 and 15, points (a) and (b). Such derogations require that they do not adversely affect the maintenance of populations of the species concerned at an appropriate conservation status within their natural range, and that no satisfactory alternative to derogation exists, for the following purposes:

(a) to protect wild fauna and flora and conserve natural habitats;

(b)

to prevent serious damage to crops, livestock, forests, fisheries, waters and other forms of property;

(c)

in the interests of public health and safety or for other imperative reasons of overriding public interest, including those of a social or economic nature and in situations that would have beneficial effects of major importance for the environment;

(d)

for educational and research purposes, repopulation or reintroduction of certain species, and the breeding operations necessary for these purposes, including artificial propagation of plants;

(e)

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.

(2) Every two years, Member States submit a report to the Commission, in the format established by the Committee, on derogations granted under paragraph (1). The Commission issues an opinion on these derogations within a maximum of 12 months of receiving the report and informs the Committee accordingly.

(3) The report must specify:

(a)

the species subject to the derogation and the reasons for granting it, including the nature of the risk and, where appropriate, the alternatives to derogation rejected and the scientific basis used;

(b)

the authorised means, devices and methods for capturing or killing animals and the reasons for their use;

(c)

the circumstances in which these derogations are granted;

(d)

the authority empowered to declare and verify compliance with the derogation conditions and to decide which means, devices and methods may be used, within what limits and by which institutions, and the persons carrying out the operations;

(e)

the supervision measures applied and the results obtained.

We note that these possibilities for derogation under the Habitats Directive are completely disregarded by the criticised OUG. The ordinance does not provide for intervention involving bears in any of the situations mentioned above, but in situations unrelated to them.

These derogations under the Habitats Directive have a partial counterpart in OUG 57/2007, Art. 38, which provides that:

“By way of exception to Art. 33, paras. (1)-(4), and Art. 37, para. (1), the central public authority for environmental protection establishes derogations annually and whenever necessary, provided that no acceptable alternative exists and that the derogating measures are not detrimental to maintaining populations of the species concerned at a favourable conservation status within their natural range, and only in the following situations:

1. a) in the interests of protecting wild fauna and flora and conserving natural habitats;
2. b) to prevent significant damage, particularly to agricultural crops, domestic animals, forests, fisheries and waters, and, for animal species other than birds, also to prevent significant damage to other property;
3. c) in the interests of public health and safety and, for animal species other than birds, also for other reasons of overriding public interest, including those of a social or economic nature, and for beneficial effects of major importance for the environment;
4. d) for scientific research and educational purposes, repopulation and reintroduction of these species, and the breeding operations necessary for these purposes, including artificial propagation of plants;
5. e) to allow, under strictly controlled conditions, selectively and to a limited extent, the capture or keeping of a limited and specified number of specimens of certain bird species or species listed in Annexes No. 4 A and 4 B;
6. f) in the interests of air safety, for all bird species, including migratory birds.

(2) Derogations are established by order of the head of the central public authority for environmental and forest protection, with the opinion of the Romanian Academy.

(2^1) By way of exception to para. (2), derogations concerning all bird species and the mammal species listed in Annexes No. 4 A and 4 B also require the binding opinion of the central public authority for environmental and forest protection.

(2^2) The procedure for establishing derogations is approved by order of the central public authority for environmental and forest protection.

(2^3) The derogations under para. (2^1) specify the following:

1. a) the species subject to the derogations;
2. b) the means, systems or methods authorised for capture or slaughter;
3. c) the risk conditions and circumstances of time and place under which such derogations may be granted;
4. d) the authority empowered to declare that the required conditions are met and decide which means, systems or methods may be used, within what limits and by whom;
5. e) the checks to be carried out.

(3) The competent environmental protection authority submits reports to the European Commission on the derogations applied, as follows:

1. a) annually, for derogations concerning wild bird species;
2. b) every 2 years, for derogations concerning wild species listed in Annex No. 4 A.

(4) The reports referred to in para. (3) contain information on:

1. a) the species subject to the derogations and the reason for derogation, including the nature of the risk, indicating, where appropriate, the alternative solutions rejected and the supporting scientific data;
2. b) the means, devices or methods authorised for capturing or killing animal species and the reasons for their use;
3. c) the circumstances of time and place in which these derogations are granted;
4. d) the authority empowered to declare and verify that the necessary conditions are met and decide which means, devices or methods may be used, within what limits, through which institutions/services, and the persons carrying them out;
5. e) the control measures applied and the results obtained.”

We can therefore note, first, that the criticised OUG disregards OUG 57/2007 as well as the Habitats Directive, establishing conditions for intervention involving bears beyond those permitted by OUG 57/2007.

We also note that paras. (2), (2^1) and (2^2) provide that derogations are established by order of the head of the central public authority for environmental and forest protection, with the opinion of the Romanian Academy and the binding opinion of the central public authority for environmental and forest protection. Para. (2^2) provides that the procedure for establishing derogations is approved by order of the central public authority for environmental and forest protection. These provisions have no counterpart in the OUG approving intervention methods for the brown bear species and amending and supplementing certain legislative acts.

The Habitats Directive also clearly provides that derogations from special conservation measures may be approved only if other alternative solutions have been implemented unsuccessfully.

Furthermore, under Annex 3 to the same legislative act, the bear is a species whose conservation requires the designation of special areas of conservation. Art. 31 of OUG 57/2007 provides that:

“(1) The protection and conservation of natural habitats and wild species of Community interest, other than birds, present in Romania and listed in Annexes No. 2 and 3 are ensured by declaring sites of Community importance and special areas of conservation, selected and designated according to the criteria in Annex No. 7 and the provisions of Art. 8, para. (1), points b) and c), and para. (4).

[…]

(4) To protect and conserve species, national/regional action plans are drawn up for each species, documents containing action and conservation measures in accordance with species action plans agreed at international/European level. ”

Such measures are absent from the OUG concerning immediate intervention to prevent and combat attacks by brown bears.

Likewise, Art. 33 of OUG No. 57/2007 provides that for terrestrial, aquatic and subterranean wild plant and animal species listed in Annexes No. 4 A, thus including the brown bear, and 4 B, except bird species, living both within and outside natural protected areas, the following are prohibited:

1. a) any form of harvesting, capture, killing, destruction or injury of specimens in their natural environment, at any stage of their biological life cycle;
2. b) deliberate disturbance during breeding, rearing, hibernation and migration;
3. c) deliberate damage, destruction and/or collection of nests and/or eggs from the wild;
4. d) damage to and/or destruction of breeding or resting sites;
5. e) harvesting flowers and fruit, picking, cutting, uprooting or deliberately destroying these plants in their natural habitats, at any stage of their biological life cycle;
6. f) keeping, transporting, selling or exchanging for any purpose, and offering for exchange or sale, specimens taken from the wild, at any stage of their biological life cycle.”

As regards the derogations that may be granted, Art. 15 of the Habitats Directive, an article also reflected in OUG 57/2007, provides that:

“As regards capturing or killing the wild animal species listed in Annex V, point (a), and where derogations apply under Art. 16 to the taking, capture or killing of species listed in Annex IV, point (a), Member States prohibit the use of any non-selective method that could lead to the local disappearance or serious disturbance of the species concerned, particularly:

(a)

the use of capture and killing methods listed in Annex VI, point (a),

(b)

any form of capture or killing carried out from the means of transport listed in Annex VI, point (b)”.

Annex VI, point a, “PROHIBITED METHODS, DEVICES AND MEANS OF TRANSPORT, CAPTURE AND KILLING”, specifies:

(a) Non-selective means

MAMMALS

• Blind or mutilated animals used as live decoys

• Tape recorders

• Electrical or electronic devices capable of killing or stunning

• Artificial light sources

• Mirrors and other blinding devices

• Devices for illuminating targets

• Night-shooting sights with an electronic scope or image converter

• Explosives

• Nets that are non-selective in their design or conditions of use

• Traps that are non-selective in their design or conditions of use

• Crossbows

• Poison and poisoned or anaesthetic bait

• Gassing or fumigation

• Automatic or semi-automatic weapons with magazines capable of holding more than two rounds

Although the OUG approving intervention methods for the brown bear species and amending and supplementing certain legislative acts does not provide for shooting with automatic or semi-automatic weapons whose magazines can hold more than two rounds, or for capture and killing from the means of transport listed in Annex VI, point (b), it does not prohibit such practices either, providing no means of protecting/conserving bears and thus leaving the way open to breaches of the European Directive. We also have the same criticisms concerning forms of capture and killing carried out from the means of transport listed in Annex VI, point (b), namely aircraft and moving motor vehicles.

These provisions have their counterpart in OUG 57/2007, Art. 52, para. (1), point g.

We can therefore conclude that the bear should enjoy the same protection nationally as at European level, since the provisions for its protection and conservation under the Habitats Directive are reflected in OUG 57/2007.

To the President of Romania