Gloss to the judgment of the Supreme Administrative Court (Poland) of 10 October 2023 (Case no. III OSK 861/22)

Abstract

Protection of species is a form of nature conservation of a heterogeneous legal nature. The Cricetus cricetus is a strictly protected species in EU Member States under Article 12 and Annex IV of the Habitats Directive, implemented in Poland by the Act of 2004 on Nature Conservation. Polish nature conservation bodies (GDOŚ and RDOŚ), before granting a derogation permit from the strict protection of this species on the basis of Article 56(4)(6) of the Act of 2004, must take into account Article 16 of Directive (derogations from the prohibitions) and the CJEU caselaw. Moreover, Polish administrative courts should also use this approach while reviewing the legality of a derogation permit concerning this species. Consequently, the aim of the gloss is to comment on the need to carry out by involved environmental protection authorities (GDOŚ and RDOŚ) their duty of consistent interpretation in regard to two issues: identification of the Cricetus cricetus’s ‘natural range’ for the purpose of assessing its ‘favourable conservation status’ and the precautionary principle.