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The Ongoing Battle against Invasive Alien Species in the

European Union: An assessment of the listing process of invasive alien species under EU Regulation

1143/2014

Name: Anika den Boer

Student number: u1264491

Date submission: June 2020

Supervisor: Arie Trouwborst

Department: Tilburg Law School

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Table of Contents List of Abbreviations ........................................................................................................ 3

Chapter 1: Introduction ................................................................................................... 5

1.1 Introduction to the research problem ................................................................... 5

1.2 Research questions ................................................................................................ 7

1.3 Methodology .......................................................................................................... 8

1.4 Structure ................................................................................................................ 9

Chapter 2: Overview of the Regulation on invasive alien species .......................... 10

2.1 Legal background of the IAS Regulation .............................................................. 10

2.2 Thorough description of the IAS Regulation ........................................................ 11

Chapter 3: Developing an assessment framework .................................................... 21

3.1 IAS management in international and European instruments ........................... 21

3.2 Precautionary principle ....................................................................................... 24

3.3 Assessment framework to be applied .................................................................. 26

3.4 Interim conclusion .............................................................................................. 30

Chapter 4: The application of the assessment framework ...................................... 31

4.1 Assessing the criteria in the listing process of the IAS Regulation ..................... 31

4.2 Assessing the decision-making procedure for drawing up the Union list ........... 35

Chapter 5: Conclusion .................................................................................................... 41

5.1 Answer to the research questions ........................................................................ 41

5.2 Reflection and recommendations ........................................................................ 42

Bibliography .................................................................................................................... 44

1. Primary Sources .......................................................................................................... 44

2. Secondary Sources ..................................................................................................... 46

Appendices .......................................................................................................................53

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List of Abbreviations Bern Convention : Convention on the Conservation of European

Wildlife and Natural Habitats

Birds Directive : Directive 2009/147/EC of the European Parliament and of the Council on the Conservation of Wild Birds

Bonn Convention : Convention on the Conservation of Migratory Species

of Wild Animals CBD : Convention on Biological Diversity CBD Guiding Principles : CBD Guiding Principles for the prevention,

introduction and mitigation of impact of alien species that threaten ecosystem habitats or species

CJEU : Court of Justice of the European Union COP : Conference of the Parties EASIN : European Alien Species Information Network EC : European Commission EU : European Union Habitats Directive : Council Directive 92/43/EEC on the Conservation of

Natural Habitats and of Wild Fauna and Flora

IAS : Invasive Alien Species IAS Regulation : Regulation (EU) No 1143/2014 of the European

Parliament and of the Council on the prevention and management of the introduction and spread of invasive alien species

MS : Member States Ramsar Convention : Convention on Wetlands of International

Importance especially as Waterfowl Habitat SPS Agreement : WTO Agreement on the Application of Sanitary and

Phytosanitary Measures TEU : Treaty on the European Union

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TFEU : Treaty on the Functioning of the European Union Union list : IAS considered to be of Union concern WTO : World Trade Organisation

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Chapter 1: Introduction

1.1 Introduction to the research problem

Biodiversity loss is one of the main global threats of this moment and has five principal

drivers – overexploitation, pollution, habitat change, climate change and invasive alien

species (‘IAS’) – which are nowadays “either undiminished or actually increasing in

intensity”.1 This research only investigates one of these drivers, namely the threat posed

by IAS. An alien species is “any live specimen of a species, subspecies or lower taxon of

animals, plants, fungi or microorganisms introduced outside its natural range”.2 IAS

may occur in all different types of habitat and in any major taxonomic group, which

makes them relevant for any Member State (‘MS’). They can enter the European Union

(‘EU’) in various ways. Most of them are imported unintentionally, as part of wildlife

trade, transport, and tourism, but they are also deliberately imported for use in forestry,

agriculture, fish and fur farms, and to serve as garden plants and pets.3 The spread of

IAS can adversely impact biodiversity, ecosystem services, human health and economic

activities.4 In Europe, there are over 12,000 confirmed alien species, 850 of which have

a high impact and are therefore considered invasive.5 A comprehensive analysis on the

impact of IAS on European native species in 2015 showed that one out of five endangered

species in Europe is directly affected by IAS.6 Besides, the total documented costs of IAS

in Europe are estimated to be at least 12.5 billion euros per year, of which damage caused

by IAS constitutes the major contribution.7

In order to tackle the introduction and spread of IAS, the European Parliament and the

Council adopted Regulation (EU) 1143/2014 of 22 October 2014 on the prevention and

management of the introduction and spread of IAS, which entered into force on 1

January 2015 (‘IAS Regulation’).8 The Regulation is entirely binding and is directly

1 European Commission 2006, p. 5; Bowman 2016, p. 3. 2 Article 3(1) IAS Regulation. 3 Genovesi & Shine 2004, p. 7; Davies 2016, p. 186; Sundseth 2016, p. 7. 4 European Commission 2008, p. 4-5; Scalera and others 2012, p. 11-15. 5 Can be accessed on: http://alien.jrc.ec.europa.eu/SpeciesMapper. 6 Genovesi, Carnevali & Scalera 2015, p. 3-13. 7 Kettunen and others 2009, p. 27. 8 Regulation (EU) No 1143/2014 of the European Parliament and of the Council of 22 October 2014 on the prevention and management of the introduction and spread of invasive alien species, OJ L 317.

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applicable in all MS. It establishes rules “to prevent, minimise and mitigate the adverse

effects of IAS on biodiversity and related ecosystem services, and on human health and

safety as well as to reduce their social and economic impact”.9 The obligations of MS

under the Regulation are to prevent the introduction and spread of IAS, to establish a

surveillance system to confirm early detection of IAS of Union Concern, to apply

effective eradication measures, and to adopt proportionate management measures for

the IAS that are already widely spread on their territory. The core instrument of the IAS

Regulation is the listing of IAS of Union Concern (‘Union list’), which can be found in

the first chapter of the Regulation. Priority species will be included on the Union list,

based on the criteria laid down in Article 4(3) and the risk assessments which meet the

criteria of Article 5(1) of the Regulation. The Union list currently consists of 66 IAS

which threaten or adversely impact biodiversity and related ecosystem services, as well

as human health and the economy (see Appendix 1).10 It is essential that the listing

process is carried out properly and therefore, comprehensive and transparent risk

assessments of good quality are necessary to achieve the purpose of the Regulation.11

Since MS’ obligations apply only to species included on the Union list, the list “should

be as inclusive as possible in order to promote the consensus that prevention is better

than cure”.12

Drawing up the Union list is far from easy if all the different interests of the MS are to

be taken into account. Since many interests are at stake, it is possible that alien species

that are already causing significant damage will not be included on the Union list. The

American mink (‘Neovison vison’) for instance is one of those species that causes

significant damage to biodiversity, ecosystem services, human health and economic

activities. Fur farms were the main reason for the introduction of the species in Europe,

and because of escapes and intentional releases of American minks, they are now

9 Paragraph 6 of the Preamble, IAS Regulation. 10 Commission Implementing Regulation (EU) 2016/1141 of 13 July 2016 adopting a list of invasive alien species of Union concern pursuant to Regulation (EU) No 1143/2014 of the European Parliament and of the Council, OJ L 189; Commission Implementing Regulation (EU) 2017/1263 of 12 July 2017 updating the list of invasive alien species of Union concern established by Implementing Regulation (EU) 2016/1141 pursuant to Regulation (EU) No 1143/2014 of the European Parliament and of the Council, OJ L 182; Commission Implementing Regulation (EU) 2019/1262 of 25 July 2019 amending Implementing Regulation (EU) 2016/1141 to update the list of invasive alien species of Union concern, OJ L 199. 11 Vanderhoeven and others 2017, p. 2508. 12 Tollington and others 2017, p. 113.

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located in various parts of Europe, where they have a significant impact on native

species.13 IAS mainly affect native species through competition, transmission of diseases,

predation, and hybridisation.14 This is certainly the case with the American mink, which

has long been known to have a major impact on (endangered) native species.15 The

American mink influences native species in Europe through strong competition,

predation and as a diseases vector, and even human activities are affected by the

presence of mink, especially fish farms.16 Predation by American minks has led to a huge

decline in small mammals and ground nesting bird populations.17 Despite the vast

amount of scientific evidence produced in the risk assessments regarding the mink’s

entry, establishment, spread and impact, the American mink is currently not included

on the Union list. It is therefore strongly argued by some that the core instrument of

the IAS Regulation is based too much on the impact on natural resources, human well-

being and economic aims and not on the main objective of the IAS Regulation, which is

the conservation of biodiversity.18 In addition, there is a risk that species will not be

included on the Union list in the absence of scientific evidence, thereby undermining

the preventive purpose of the IAS Regulation.

1.2 Research questions

The purpose of this research is to examine whether the listing process of Articles 4 and

5 of the IAS Regulation is compatible with international and European law. The criteria

in the IAS Regulation and their implementation will be assessed according to an

assessment framework, which is developed on the basis of the main guidelines derived

from international and European legislation. The overarching research question is:

“Is the listing process of invasive alien species under EU Regulation No 1143/2014

compatible with International and European Law?”

13 Macdonald & Harrington 2003, p. 422-32; Bonesi & Palazon 2007, p. 471, 475. 14 Kettunen and others 2009, p. 2-3; Scalera and others 2012, p. 11-12; Sundseth 2016, p. 9; Davies 2016, p. 188. 15 Macdonald & Harrington 2003, p. 422-32; Bonesi & Palazon 2007, p. 471, 475; Kettunen and others 2009, p. 2; Scalera and others 2012, p. 19-20; Genovesi, Carnevali & Scalera 2015, p. 13; Tollington and others 2017, p. 116; Sundseth 2016, p. 24; Davies 2016, p. 188. 16 Scalera and others 2012, p. 19-20. 17 Macdonald & Harrington 2003, p. 421-27; Bonesi & Palazon 2007, p. 477; Kettunen and others 2009, p. 5; Scalera and others 2012, p. 19. 18 Tollington and others 2017, p. 113-16; Genovesi and others 2015, p. 1308-09; Heink and others 2018, p. 1670-74.

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In order to answer the main research question, the following sub-questions will be

addressed:

1) To what extent do the criteria in Articles 4 and 5 of the IAS Regulation contribute

to the effective implementation of the CBD Guiding Principles and the European

Strategy on IAS?

2) Is the decision-making procedure for drawing up the Union list sufficient to

ensure a dynamic and representative list?

1.3 Methodology

In order to provide a comprehensive answer to the research questions, the doctrinal

legal research method is used, comprising a legal analysis of various (legal) documents,

the literature and the case law of the Court of Justice of the EU (‘CJEU’). Although using

both international and European instruments in the thesis, the focus will be on the EU

and its MS. First of all, the legal background of the IAS Regulation will be briefly

described and a thorough description of the six chapters of the Regulation will be

provided. After becoming familiar with the IAS Regulation and the provisions therein,

the management of IAS in other international and European instruments will be

examined, including the application of the precautionary principle in these instruments.

On the basis of this analysis, only a few instruments will be selected for the assessment

framework to be developed. This assessment framework will consist of the most relevant

guidelines from the selected instruments. Then, the developed assessment framework

will be applied to Articles 4 and 5 of the IAS Regulation to assess whether the provisions

comply with the relevant guidelines derived from international and European

legislation. The decision-making procedure for drawing up the Union list will also be

assessed according to the assessment framework, by examining various risk assessments

and the reasons for the decision to exclude certain species from the Union list. The final

steps of the thesis are to answer all research questions and to reflect on the thesis, as

well as to make some recommendations for the current listing process under the IAS

Regulation.

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1.4 Structure

The thesis is divided into five chapters. Chapter 2 will firstly set out the legal background

of the IAS Regulation, followed by a thorough description of the Regulation. Chapter 3

will focus on the development of an assessment framework, which will be used to

answer the research questions. The assessment framework will be developed through a

selection of the most relevant guidelines from international and European instruments.

Chapter 4 applies this assessment framework to Articles 4 and 5 of the IAS Regulation

and to the decision-making procedure for drawing up the Union list. Chapter 5 ends

with an answer to all research questions, a reflection and some recommendations.

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Chapter 2: Overview of the Regulation on invasive alien species

This chapter briefly describes the legal background of the IAS Regulation (section 2.1)

and provides a thorough description of the IAS Regulation (section 2.2).

2.1 Legal background of the IAS Regulation

Prior to the introduction of the IAS Regulation, approaches to the IAS issue differed

from one MS to another and there was no comprehensive system specifically designed

to manage IAS at EU level.19 The individual measures taken by MS remained

predominantly reactive, “seeking to minimise the damage already being caused without

paying sufficient attention to prevention or to detecting and responding to new

threats”.20 IAS do not remain within the borders of certain MS and an adequate response

requires cooperation between all different countries at international, European,

regional and local level.21 The European Commission (‘EC’) already indicated in 2006

that a “comprehensive EU strategy, as well as specific actions including an early warning

system, should be developed for the purpose of substantially reducing the impact on EU

biodiversity of IAS and alien genotypes”.22 Not long after, the EC published in 2008

another Communication ‘Towards an EU strategy on Invasive Species’, outlining the

rationale for the IAS approach.23 Together, this led in 2011 to the adoption of the ‘EU

Biodiversity Strategy to 2020’, with Action 16 of Target 5 stating that the EC “will fill

policy gaps in combating IAS by developing a dedicated legislative instrument by

2012”.24 The EC’s proposal for a regulation on IAS came in 2013,25 and finally led to the

adoption of EU Regulation No 1143/2014 of the European Parliament and of the Council

of 22 October 2014 on the prevention and management of the introduction and spread

of IAS.26 The IAS Regulation entered into force on 1 January 2015 and was considered a

19 See European Commission 2011a, p 1-500. 20 European Commission 2013, p. 2. 21 Genovesi & Shine 2004, p. 8-9; European Commission 2013, p. 2. 22 European Commission 2006, p. 12. 23 European Commission 2008, p. 1-10. 24 European Commission 2011, p. 1-16. 25 European Commission 2013, p. 1-36. 26 Regulation (EU) No 1143/2014 of the European Parliament and of the Council of 22 October 2014 on the prevention and management of the introduction and spread of invasive alien species, OJ L 317.

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landmark achievement.27

2.2 Thorough description of the IAS Regulation

What immediately stands out in the IAS Regulation is the comprehensive preamble,

consisting of 38 paragraphs. There are paragraphs setting out the reasons for the

adoption of the Regulation. For instance paragraph 3 elaborates on the threat of IAS to

biodiversity, related ecosystem services, human health, and the economy. There are

paragraphs in the preamble linking the Regulation to engagements under other

international and European instruments. For instance paragraph 4 which makes a

special reference to Article 8(h) of the Convention on Biological Diversity (‘CBD’).28

There are paragraphs in the preamble describing the preparation process of the Union

list, the risk assessments to be made for that purpose, and the various principles to be

observed. Overall, the preamble broadly reflects the content of the Regulation.

Chapter 1 consists of Articles 1 to 6, which relate to the general provisions of the

Regulation. Article 1 and 2 describe the subject matter and the scope of the Regulation.

Important to note is that the Regulation does not apply to “species changing their

natural range without human intervention, in response to changing ecological

conditions and climate change”.29 Article 3 contains the definitions of 17 terms. Alien

species are, according to the Regulation, “any live specimen of a species, subspecies or

lower taxon of animals, plants, fungi or microorganism introduced outside its natural

range”.30 IAS are defined as “an alien species whose introduction or spread has been

found to threaten or adversely impact upon biodiversity and related ecosystem

services”.31 Another significant definition to mention is ‘introduction’, which in terms of

the Regulation means “the movement, as a consequence of human intervention, of a

species outside its natural range”.32 While developing the Regulation, policy makers had

to find a suitable definition of IAS, which needed to be in line with the definition of the

27 Beninde and others 2015, p. 199-205. 28 Convention on Biological Diversity, 5 June 1992, UNTS 1760. 29 Article 2(2)(a) IAS Regulation; See also paragraph 7 of the Preamble, IAS Regulation. 30 Article 3(1) IAS Regulation. 31 Article 3(2) IAS Regulation. 32 Article 3(7) IAS Regulation.

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CBD and needed to reflect the European Biodiversity Strategy to 2020.33 There are

different views among scientists, policy-makers and stakeholders on how IAS should be

defined, and the concept is therefore highly controversial and often debated.34 The

assessment criteria described in the IAS Regulation, which focus on the impact on

natural resources and human well-being rather than on the spread and pace of

expansion of the range, are subject of a lot of discussion and are influenced by strategic

and political interests.35 Article 4 of the Regulation lists the criteria to be met in order

to include an IAS on the Union list. The EC adopts, by means of implementing acts, the

Union list on the basis of the criteria laid down in the third paragraph.36 These

implementing acts “shall be adopted in accordance with the examination procedure

referred to in Article 27(2)” and “shall be submitted to the Committee referred to in

Article 27(1)”.37 The Union list will be subject to a comprehensive review at least every

six years by the EC and will be updated in the meantime, as appropriate, “in accordance

with the procedure referred to in paragraph 1”, with: “the addition of new IAS” and “the

removal of listed species if they no longer meet one or more criteria laid down in

paragraph 3”.38 Below, the description of Chapter 6 of the IAS Regulation will further

elaborate on how the decision-making procedure for drawing up the Union list works.

The Union list is only reserved for the most prejudicial species, which cause damage “so

significant that it justifies the adoption of dedicated measures applicable across the

Union, including in the MS that are not yet affected or are even unlikely to be affected”.39

The criteria in Article 4(3) are considered the core instrument for the application of the

Regulation and “to ensure the effective use of resources, those criteria should ensure

that among the potential IAS currently known, those that have the most significant

adverse impact will be listed”.40 The criteria in Article 4(3) are as follows:

33 European Commission 2011, p. 1-16. 34 Heink and others 2018, p. 1670. 35 Ibid. 36 Article 4(1) IAS Regulation. 37 Ibid; For the applicable procedure, see Article 5 of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers, OJ L 55. 38 Article 4(2) IAS Regulation. 39 Paragraph 10 of the Preamble, IAS Regulation 40 Paragraph 11 of the Preamble, IAS Regulation.

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a) “they are found, based on available scientific evidence, to be alien to the territory

of the Union excluding the outermost regions;

b) they are found, based on available scientific evidence, to be capable of

establishing a viable population and spreading in the environment under current

conditions and in foreseeable climate change conditions in one biogeographical

region shared by more than two MS or one marine subregion excluding their

outermost regions;

c) they are, based on available scientific evidence, likely to have a significant

adverse impact on biodiversity or the related ecosystem services, and may also

have an adverse impact on human health or the economy;

d) it is demonstrated by a risk assessment carried out pursuant to Article 5(1) that

concerted action at Union level is required to prevent their introduction,

establishment or spread;

e) it is likely that the inclusion on the Union list will effectively prevent, minimise

or mitigate their adverse impact.”

On the basis of this set of cumulative criteria, requests for the inclusion of IAS on the

Union list may be submitted by MS to the EC and shall include the name of the species,

a risk assessment carried out in accordance with Article 5(1) and evidence proving that

the above criteria are met.41 Also, the EC shall, when adopting or updating the Union

list, “apply the criteria set out in paragraph 3 with due consideration to the

implementation cost for MS, the cost of inaction, the cost-effectiveness and the socio-

economic aspect”.42 Furthermore, the Union list “shall include as a priority those IAS

that are not yet present in the Union or are at an early stage of invasion and are most

likely to have a significant adverse impact”, and IAS that “are already established in the

Union and have the most significant adverse impact”.43 Compiling the Union list, based

on the criteria in Article 4(3) of the IAS Regulation, shall not be done without a

scientifically robust risk assessment. Article 5 of the IAS Regulation sets out the

elements for the required risk assessments. On the basis of Article 5(1), “for the purposes

41 Article 4(4) IAS Regulation. 42 Article 4(6) IA Regulation. 43 Ibid.

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of Article 4, a risk assessment shall be carried out in relation to the current and potential

range of IAS, having regard to the following elements:

a) a description of the species with its taxonomic identity, its history, and its natural

and potential range;

b) a description of its reproduction and spread patterns and dynamics including an

assessment of whether the environmental conditions necessary for its

reproduction and spread exist;

c) a description of the potential pathways of introduction and spread of the species,

both intentional and unintentional, including where relevant the commodities

with which the species is generally associated;

d) a thorough assessment of the risk of introduction, establishment and spread in

relevant biogeographical regions in current conditions and in foreseeable climate

change conditions;

e) a description of the current distribution of the species, including whether the

species is already present in the Union or in neighbouring countries, and a

projection of its likely future distribution;

f) a description of the adverse impact on biodiversity and related ecosystem

services, including on native species, protected sites, endangered habitats, as

well as on human health, safety, and the economy including an assessment of the

potential future impact having regard to available scientific knowledge;

g) an assessment of the potential costs of damage;

h) a description of the known uses for the species and social and economic benefits

deriving from those uses.”

The risks assessment should be consistent with the “applicable provisions under the

relevant Agreements of the World Trade Organisation (‘WTO’) on placing trade

restrictions on species”.44 The measures laid down in the Regulation to target IAS are

largely dependent on the listing process of the most harmful species and therefore the

quality of the risk assessments is of great importance as its results may sometimes lead

44 Paragraph 11 and 13 of the Preamble, IAS Regulation.

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to controversial and costly eradication or control measures.45 In addition, if the listing

process does not rely on adequate data, there is chance that policy and public support

will be lost and that the risk assessment protocols used will be undermined.46 Minimum

standard criteria have been developed within the context of the IAS Regulation, which

needed to be replicable, reliable and resilient if they were to be the foundation of IAS

policy and decision making.47 These fourteen minimum standards for risk assessment

are: “(1) description (taxonomy, invasion history, distribution range (native and

introduced), geographic scope, socio-economic benefits); (2) likelihood of introduction,

establishment, spread and magnitude of impact; (3) description of the current and

potential distribution, spread and magnitude of impact; (4) inclusion of multiple

pathways and vectors of introduction and spread both intentional and unintentional;

(5) assessment of environmental impacts with respect to biodiversity (and ecosystem)

patterns and processes; (6) assessment of adverse impacts with respect to ecosystem

services; (7) assessment of adverse socio-economic impacts; (8) status (threatened or

protected) of species or habitat under threat; (9) possible effects of climate change in

the foreseeable future; (10) data limitations; (11) information sources; (12) summary of

the different components of the risk assessment in a consistent and interpretable form

and an overall summary; (13) uncertainty (confidence); and (14) quality assurance”.48

Chapter 2 consists of Articles 7 to 13, which deal with prevention. A comprehensive set

of restrictions is set out in Article 7 with respect to the species on the Union list and MS

“shall take all necessary steps to prevent the unintentional introduction or spread,

including, where applicable, by gross negligence, of IAS of Union concern”. Thus, the

provision monitors intentional and unintentional introduction or spread of IAS of

Union concern. MS are able to issue permits authorizing exceptions to the restrictions

set out in article 7(1) on the basis of Articles 8 and 9 of the Regulation, except in the case

of components e (placing on the market) and h (release into the environment).49 MS

must “establish a permit system allowing establishments to carry out research on, or ex-

45 Vanderhoeven and others 2017, p. 2508; Roy and others 2018, p. 527-28. 46 Vanderhoeven and others 2017, p. 2509. 47 Roy and others 2018, p. 535. 48 Roy and others 2014, p. 11; Roy and others 2018, p. 533-35. 49 Article 8(1) and 9 IAS Regulation.

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situ conservation of, IAS of Union concern”.50 Permits for other purposes than those set

out in Article 8(1), may be issued “in exceptional cases, for reasons of compelling public

interest, including those of a social or economic nature” and are “subject to

authorisation by the EC”.51 But how this “compelling public interest” should be assessed

is not entirely evident and “rests on a set of unknown probabilities, including the risk of

escape, likely impact, and the likelihood that damage can be avoided by curtailing the

industry”.52 MS are allowed to take immediate emergency measures, “consisting of any

of the restrictions set out in Article 7(1)”, if a MS “has evidence concerning the presence

in, or imminent risk of introduction into its territory of an IAS, which is not included

on the Union list but which the competent authorities have found, on the basis of

preliminary scientific evidence, to be likely to meet the criteria set out in Article 4(3)”.53

If these emergency measures include the application of one of the components (a), (d)

or (e) of Article 7(1), the MS “shall immediately notify the EC and all the other MS”, and

“carry out a risk assessment pursuant to Article 5”.54 Within 18 months of the adoption

of the Union list, MS shall “carry out a comprehensive analysis of the pathways of

unintentional introduction and spread of IAS of Union concern at least in their territory

and marine waters, and identify the pathways which require priority action (‘priority

pathways’)”.55 To address these priority pathways, MS shall within three years of the

adoption of the Union list “establish and implement one single action plan or a set of

action plans”.56 The requirements to be met by these action plans are set out in Article

13(4) of the Regulation.

Chapter 3 consists of Articles 14 to 18 dealing with early detection and rapid eradication

mechanisms to be developed by MS. Within 18 months of the adoption of the Union

list, MS are obliged to “establish a surveillance system of IAS of Union concern, or

include in their existing system, which collects and records data on the occurrence in

the environment of IAS by survey, monitoring or other procedures to prevent the spread

50 Article 8(1) IAS Regulation. 51 Article 9(1) IAS Regulation. 52 Tollington and others 2017, p. 116. 53 Article 10(1) IAS Regulation. 54 Article 10(2)-(3) IAS Regulation. 55 Article 13(1) IAS Regulation. 56 Article 13(2) IAS Regulation.

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of IAS into or within the Union”.57 In addition, MS should ensure that they have “fully

functioning structures to carry out the official control necessary to prevent the

intentional introduction into the Union of IAS of Union concern”.58 The surveillance

system must be used to “confirm early detection of the introduction or presence of IAS

of Union concern”, which in turn must be notified to the EC and other MS.59 Following

this, MS shall, within three months after the transmission of the latter notification,

“apply eradication measures” and again notify those measures to the EC and other MS.60

Derogations from the obligation of rapid eradication are possible on the basis of Article

18 of the Regulation.

Chapter 4 consists of Articles 19 and 20 dealing with the management of IAS that are

widely spread. Within 18 months after a species is included on the Union list, “MS shall

have in place effective management measures for those IAS of Union concern which the

MS have found to be widely spread on their territory”.61 Paragraph 2 then indicates

which actions can be used in order to achieve “the eradication, population control or

containment of a population of an IAS”. If there is a substantial risk that an IAS will

spread to another MS, the EC and the other MS must immediately be notified.62

Furthermore, when “an ecosystem has been degraded, damaged, or destroyed by IAS of

Union concern”, MS “shall carry out appropriate restoration measure to assist the

recovery of that ecosystem”.63

Chapter 5 consists of Articles 21 to 23, which are horizontal provisions. MS shall “make

every effort to ensure close coordination with all MS concerned and, where practical

and appropriate, use existing structures arising from regional or international

agreements”.64 MS may also adopt “more stringent national rules with the aim of

preventing the introduction, establishment and spread of IAS”.65 Those measures must

57 Article 14(1) IAS Regulation. 58 Article 15(1) IAS Regulation. 59 Article 16(1)-(2) IAS Regulation. 60 Article 17(1) IAS Regulation. 61 Article 19(1) IAS Regulation. 62 Article 19(5) IAS Regulation. 63 Article 20(1) IAS Regulation. 64 Article 22(1) IAS Regulation. 65 Article 23 IAS Regulation.

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be compatible with the Treaty on the Functioning of the EU66 (‘TFEU’), and be notified

to the EC.67

Chapter 6 consists of Articles 24 to 33, which are the final provisions of the Regulation.

The provisions herein are first and foremost an obligation for MS to report, assess,

inform and, in addition, contain different systems to facilitate and ensure the

implementation of the Regulation. An information support system shall progressively

be established by the EC to facilitate the implementation of the Regulation.68 As is

known, the European Alien Species Information Network (‘EASIN’) is appointed as the

information support system.69 Article 27 of the IAS Regulation is of particular

importance in relation to the listing process, as it determines the decision-making

procedure. The EC shall be assisted by a committee in the preparation of implementing

acts foreseen by the IAS Regulation.70 That committee shall be a committee “within the

meaning of Regulation (EU) No 182/2011” and “may be assisted in its tasks by the

scientific forum referred to in Article 28”.71 The so-called ‘Committee on IAS’ is

composed of representatives of the MS and chaired by a representative of the EC.72 The

draft implementing act to be adopted by the EC shall be submitted to the Committee

on IAS by the chair and until the Committee on IAS “delivers an opinion, any committee

member may suggest amendments and the chair may present amended versions of the

draft implementing act”.73 The implementing acts adopted by the EC shall be in

accordance with “the examination procedure referred to in Article 27(2)”.74 Article 27(2)

of the IAS Regulation states that “where reference is made to this paragraph, Article 5

of Regulation (EU) No 182/2011 shall apply”. On the basis of the latter, the examination

procedure stipulates that “the committee shall deliver its opinion by the majority laid

66 Consolidated version of the Treaty on the Functioning of the European Union, 26 October 2012, OJ C 326. 67 Article 23 IAS Regulation. 68 Article 25(1) IAS Regulation. 69 See https://easin.jrc.ec.europa.eu/easin. 70 Article 27(1) IAS Regulation. 71 Ibid. 72 Article 3(2) of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers, OJ L 55. 73 Article 3(3)-(4) of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers, OJ L 55. 74 Article 4(1) IAS Regulation.

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down in Article 16(4) and (5) of the TEU and, where applicable, Article 238(3) TFEU, for

acts to be adopted on a proposal from the EC”, and that “the votes of the representatives

of the MS within the committee shall be weighted in the manner set out in those

Articles”.75 The necessary qualified majority is defined as “at least 55% of the MS,

comprising at least fifteen of them and representing MS comprising at least 65% of the

population of the Union”.76 Four MS are needed for a blocking minority, “failing which

the qualified majority shall be deemed attained”.77 A blocking minority can only be

effective if the population threshold of 65% is not reached. On 25 February 2015, the

Committee on IAS adopted its rules of procedure.78 These rules stipulate that the

discussions of the Committee on IAS shall be confidential.79 Likewise, documents

submitted to members of the Committee on IAS, experts and representatives of third

parties shall be confidential.80 Lastly, the EC shall adopt the draft implementing act,

where the Committee on IAS delivers a positive opinion, but shall not adopt the draft

implementing act if the Committee on IAS delivers a negative opinion.81 Where the

Committee on IAS delivers no opinion, the EC “shall not adopt the draft implementing

act and the third subparagraph of Article 5(4) of Regulation (EU) No 182/2011 shall

apply”.82 The scientific forum referred to in Article 27(1) is established on the basis of

Article 28, called the ‘Scientific Forum on IAS’, which provides advice on scientific

questions related to the implementation of the IAS Regulation and consists of

representatives of the scientific community appointed by the MS.83 Finally, MS shall “lay

75 Article 5(1) of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers, OJ L 55. 76 Article 16(4) TEU. 77 Ibid. 78 Can be accessed on: https://ec.europa.eu/transparency/regcomitology/index.cfm?do=Search.Search&NewSearch=1; See also Article 9(1) of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers, OJ L 55. 79 Can be accessed on: https://ec.europa.eu/transparency/regcomitology/index.cfm?do=Search.Search&NewSearch=1. 80 Ibid. 81 Article 5(2)-(3) of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers, OJ L 55. 82 Article 27(3) IAS Regulation. 83 See https://ec.europa.eu/environment/nature/invasivealien/index_en.htm.

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down the provisions on penalties applicable to infringements of this Regulation and MS

shall take all the necessary measures to ensure that they are applied”.84

84 Article 30 IAS Regulation.

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Chapter 3: Developing an assessment framework

This chapter examines how IAS are managed in other international and European

instruments (section 3.1) and the extent to which the precautionary principle is applied

in these instruments (section 3.2). On the basis of these data, an assessment framework

will be developed that will be used to answer the research questions (section 3.3).

Finally, an interim conclusion will be drawn (section 3.4).

3.1 IAS management in international and European instruments

Prior to the IAS regulation, provisions relating to IAS were already included in several

international and European instruments. One of these international instruments is the

CBD, targeting IAS globally.85 The EU and its MS are parties to the Treaty and are

therefore legally bound by its provisions. Article 8(h) of the Convention is a significant

provision in the combat against IAS and contains an obligation for parties to “prevent

the introduction of, control or eradicate those alien species which threaten ecosystems,

habitats and species”. In 2010, the updated Strategic Plan for Biodiversity for the period

2011-2020 was adopted by the tenth meeting of the CBD’s Conference of the Parties

(‘COP’).86 The plan provides a “flexible framework for the establishment of national and

regional targets and for enhancing coherence in the implementation of the provisions

of the Convention and the decisions of the COP”.87 The plan includes the ‘Aichi

Biodiversity Targets’ with five strategic goals. Strategic goal B aims to reduce the direct

pressures on biodiversity and promote sustainable use. Specifically addressing IAS is

Aichi target 9 with the goal that “by 2020, IAS and pathways are identified and

prioritized, priority species are controlled or eradicated, and measures are in place to

manage pathways to prevent their introduction and establishment”.88 This objective is

reflected in target 5 of the European Biodiversity Strategy to 2020, in which action 16

states that “a dedicated instrument on IAS will be established by 2012”.89 To help achieve

this goal, fifteen ‘Guiding Principles for the Prevention, Introduction and Mitigation of

85 Convention on Biological Diversity, 5 June 1992, UNTS 1760. 86 CBD Decision X2, ‘The Strategic Plan for Biodiversity 2011-2020 and the Aichi Biodiversity Targets’, 2010. 87 Ibid., p. 6. 88 Ibid., p. 8-9. 89 European Commission 2011, p. 1-16.

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Impacts of Alien Species that Threaten Ecosystem, Habitats or Species’ ('CBD Guiding

Principles') were already developed in 2002 within the framework of the CBD.90 These

principles were developed for the full and effective implementation of Article 8(h).

Another significant international instrument is the Convention on the Conservation of

European Wildlife and Natural Habitats (‘Bern Convention’), targeting IAS at the

European level.91 Parties to the Bern Convention should “co-operate whenever

appropriate and in particular where this would enhance the effectiveness of measures

taken under other articles of this Convention”.92 Article 11(2)(b) then requires each party

“to strictly control the introduction of non-native species”. A Standing Committee was

set up for the purposes of the Bern Convention, in which all parties are represented.93

The Committee may “make recommendations to the Contracting Parties concerning

measures to be taken for the purpose of this Convention”.94 This has been of particular

importance in addressing the introduction and spread of IAS. The Standing Committee

has made many recommendations in this regard.95 In addition, the Standing Committee

provided for various codes of conduct,96 technical reports97 and guidelines98 on IAS.

Special reference should be made to the Group of experts on IAS which created the

‘European Strategy on IAS’ in 2004, aiming to promote “the development and

implementation of coordinated measures and cooperative efforts throughout Europe to

prevent or minimise adverse impacts of IAS on Europe’s biodiversity, as well as their

consequences for the economy and human health and well-being”.99 The development

90 CBD COP 6, Decision VI/23, ‘Alien Species that Threaten Ecosystems, Habitats or Species’, 2002, Annex. 91 Convention on the Conservation of European Wildlife and Natural Habitats, 19 September 1979, ETS 104. 92 Article 11(1)(a) Bern Convention. 93 Article 13 Bern Convention. 94 Article 14(1) Bern Convention. 95 For example: Standing Committee Recommendations No. 142 (2009) interpreting the CBD definition of invasive alien species to take into account climate change; No. 179 (2015) on action to promote and complement the implementation of EU Regulation 1143/2014 on invasive alien species; No. 189 (2016) on the control of the American mink in Europe; All recommendations of the Standing Committee can be consulted at: https://www.coe.int/en/web/bern-convention/recommendations-by-year. 96 For example: European Code of Conduct on Hunting and Invasive Alien Species, Bern Convention Doc. T-PVS/Inf(2013)20E; European Code of Conduct on Recreational Boating and Invasive Alien Species, Bern Convention Doc. T-PVS/INF(2016)13; European Code of Conduct on International Travel and Invasive Alien Species, Bern Convention Doc. T-PVS/Inf(2017)1. 97 For example: B. Elvira, ‘Identification of Non-Native Freshwater Fishes established in Europe, assessing their Potential Threat to Native Biological Diversity’, Bern Convention Doc. T-PVS/Inf(2001)6. 98 For example: European Guidelines on Protected Areas and Invasive Alien Species, Bern Convention Doc. T-PVS/Inf(2013)22E. 99 Genovesi & Shine 2004, p. 1-68.

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of the IAS Regulation is even partly attributable to the European Strategy on IAS.100

Similarly, the strategy was adopted to facilitate the implementation of the CBD Guiding

Principles. The Standing Committee has called on the parties to the Bern Convention

to cooperate with other contracting parties and observer states and to take the European

Strategy on IAS into account in the development and implementation of national IAS

strategies.101

Both the CBD and the Bern Convention have clearly contributed to combating the

introduction and spread of IAS on a global scale, but they are not the only instruments

containing provisions relating to IAS. Some international and European instruments

will be briefly outlined below. The international Convention on the Conservation of

Migratory Species of Wild Animals (‘Bonn Convention’) contains two provisions

concerning IAS.102 According to Article III(4)(c) of the Bonn Convention, “parties that

are range states of a migratory species listed in appendix I shall endeavour: to the extent

feasible and appropriate, to prevent, reduce or control factors that are endangering or

are likely to further endanger the species, including strictly controlling the introduction

of, or controlling or eliminating, already introduced exotic species”. Article V(5)(e) of

the Bonn Convention contains a similar provision, namely that “where appropriate and

feasible, each Agreement should provide for, but not be limited to: conservation, and

where required and feasible, restoration of the habitats of importance in maintaining a

favourable conservation status, and protection of such habitats from disturbances,

including strict control of the introduction of, or control of already introduced, exotic

species detrimental to the migratory species”. Another international instrument is the

Convention on Wetlands of International Importance especially as Waterfowl Habitat

(‘Ramsar Convention’).103 The Ramsar Convention does not contain any specific

provisions on IAS, but two COP Resolutions have been adopted, namely COP

Resolution VII.14 on Invasive Species and Wetlands in 1999 and COP Resolution VIII.18

on Invasive Species and Wetlands in 2002.

100 Genovesi, Carnevali & Scalera 2015, p. 3-13. 101 Standing Committee Recommendation No. 99 (2003) on the European Strategy on Invasive Alien Species, paragraph 1-2. 102 Convention on the Conservation of Migratory Species of Wild Animals, 23 June 1979, UNTS 1651. 103 Convention on Wetlands of International Importance especially as Waterfowl Habitat, 2 February 1971, UNTS 996.

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Provisions specifically addressing IAS are also included in European instruments. One

of these instruments is Council Directive 92/43/EEC on the Conservation of Natural

Habitats and of Wild Fauna and Flora (‘Habitats Directive’).104 The Habitats Directive is

the cornerstone of Europe’s nature conservation policy, together with Directive

2009/147/EC of the European Parliament and of the Council on the Conservation of

Wild Birds (‘Birds Directive’).105 Article 22(b) of the Habitats Directive obliges parties to

“ensure that the deliberate introduction into the wild of any species which is not native

to their territory is regulated so as not to prejudice natural habitats within their natural

range or the wild native fauna and flora and, if they consider it necessary, prohibit such

introduction”. Article 11 of the Birds Directive states that “MS shall see that any

introduction of species of bird which do not occur naturally in the wild state in the

European territory of the MS does not prejudice the local flora and fauna”. The

provisions, programmes, action plans, recommendations, resolutions, codes of conduct

and guidelines of various international and European instruments selected above are

only a few dealing with IAS, as their control is mentioned in many more different

instruments.106

3.2 Precautionary principle

The precautionary principle is advocated, required, or allowed by various international

and European instruments and it is therefore evident that the principle plays an

essential role in the field of environmental law. It even appears to be specifically relevant

in the case of IAS. The precautionary principle provides a legal basis for using risk

assessments and allows decisionmakers “to take account of scientific uncertainty and to

make judgements, based on objective, inconclusive scientific evidence and available

knowledge, as to the level of acceptable uncertainty in a given context”.107 Addressing

uncertainty in risk assessments of alien species is a problem in the absence of a

104 Council Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora, 21 May 1992, OJ L206. 105 Directive 2009/147/EC of the European Parliament and of the Council on the Conservation of Wild Birds, 30 November 2009, OJ L 20. 106 See for example Shine, Williams & Gündling 2000, p. 87-114; Genovesi & Shine 2004, p. 47-58; https://www.cbd.int/invasive/done.shtml. 107 Shine, Williams & Gündling 2000, p. 34.

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precautionary approach, because there are many species that suffer from lack of

evidence, contradictory evidence or context-dependent variability, which makes it

difficult to decide whether or not to include the species on the Union list.108 Similarly,

“it is extremely difficult to predict accurately which introduced alien species will have

benign effects and which may become invasive in a new habitat”, and “while some alien

species show their invasiveness quickly, other may have a long ‘lag’ period”.109

The precautionary principle is enshrined in Article 191 TFEU but is not defined anywhere

in the Treaty. The EC defined the scope of the principle in its 2000 Communication as

to cover “those specific circumstances where scientific evidence is insufficient,

inconclusive or uncertain and there are indications through preliminary objective

scientific evaluation that there are reasonable grounds for concern that the potentially

dangerous effects on the environment, human, animal or plant health may be

inconsistent with the chosen level of protection”.110 Easier put, the principle aims at

preventing potential harm to the environment and the health of human and animals,

even if the risk of harm has not yet been proven. Moreover, according to the CJEU

“where it proves to be impossible to determine with certainty the existence or extent of

the alleged risk because of the insufficiency, inconclusiveness or imprecision of the

result of studies conducted, but the likelihood of real harm to public health persists

should the risk materialise, the precautionary principle justifies the adoption of

restrictive measures”.111

The precautionary approach is also clearly reflected in the framework of the CBD. In the

preamble it is noted that “where there is a threat of significant reduction or loss of

biological diversity, lack of full scientific certainty should not be used as a reason for

postponing measures to avoid or minimize such a threat”. In addition, the principle is

explicitly emphasised in the CBD Guiding Principles.112 The first paragraph of Guiding

Principle 1 states that “given the unpredictability of the pathways and impacts on

108 Vanderhoeven and others 2017, p. 2510. 109 Shine, Williams & Gündling 2000, p. 3. 110 European Commission 2000, p. 9-10. 111 Case C-77/09 Gowan Comércio Internacional e Serviços Lda v Ministero della Salute [2010] ECR I-13533, para. 76. 112 CBD COP 6, Decision VI/23, ‘Alien Species that Threaten Ecosystems, Habitats or Species’, 2002, Annex, p. 257.

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biological diversity of IAS, efforts to identify and prevent unintentional introductions

as well as decisions concerning intentional introductions should be based on the

precautionary approach, in particular with reference to risk analysis”. The second

paragraph of Guiding Principle 1 states that “the precautionary approach should also be

applied when considering eradication, containment and control measures in relation to

alien species that have become established”, and “lack of scientific certainty about the

various implications of an invasion should not be used as a reason for postponing or

failing to take appropriate eradication, containment and control measures”.

Furthermore, the COP’s updated Strategic Plan for Biodiversity 2011-2020 provided for

decision-making to be based on “sound science and the precautionary approach”.113 The

precautionary approach is also strongly supported by the Bern Convention’s European

Strategy on IAS, which refers to the CBD Guiding Principles and recommends the

application of the approach to “IAS decision-making, consistent with international law,

within a risk analysis framework that takes account of possible impacts on native

biodiversity and ecosystem function”.114 Lastly, the precautionary principle plays an

important role in the Habitats Directive. The regime of Article 6 of the Directive does

not contain an explicit reference to the precautionary principle, but the principle is

included in its components. “The procedure under Article 6(3) is triggered not by the

certainty but by the likelihood of significant effects, arising from plans or projects

regardless of their location inside or outside a protected site”, and “such likelihood exists

if significant effects on the site cannot be excluded”.115

3.3 Assessment framework to be applied

Although all international and European instruments above contribute to the fight

against IAS, a narrow selection will be made in this research. From the above, it is clear

that the legal frameworks of the CBD and the Bern Convention play an essential role in

the management of IAS at both international and European level. Within these legal

frameworks, numerous guidelines and recommendations have been established for the

113 CBD Decision X2, ‘The Strategic Plan for Biodiversity 2011-2020 and the Aichi Biodiversity Targets’, 2010, p. 8. 114 Genovesi & Shine 2004, p. 22-23. 115 European Commission 2018, p. 42; See also Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij [2004] ECR I-07405, paras. 39-44.

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most efficient approach in the fight against IAS. The legal frameworks of the CBD and

the Bern Convention will therefore serve in this research as the overarching

international framework against which the IAS Regulation will be assessed. In this

regard, Article 22 of the IAS Regulation obliges MS to make “every effort to ensure close

coordination with all MS concerned” and to “endeavour to cooperate with third

countries”, and “where practical and appropriate, use existing structures arising from

regional or international agreements”.116 Thus, it can be assumed that the CBD Guiding

Principles for the implementation of Article 8(h) of the CBD, and the substantial set of

guidelines and measures adopted by the Standing Committee and the Group of Experts

on IAS for the implementation of Article 11(2)(b) of the Bern Convention, are to be

regarded as existing structures stemming from regional or international agreements.117

In this research, the CBD Guiding Principles, the European Strategy on IAS and the

advocated precautionary principle therein together constitute an assessment

framework with which the listing process of the IAS Regulation must comply.

The European Strategy on IAS has a clear objective, namely to “promote the

development and implementation of co-ordinated measures and co-operative efforts

throughout Europe to prevent or minimise adverse impacts of IAS on Europe’s

biodiversity, as well as their consequences for the economy and human health and well-

being”.118 The same ‘categories’ negatively affected by IAS, such as impacts on biological

diversity and socio-economic impacts, are mentioned in the preface to the CBD Guiding

Principles.119 This makes it evident that the negative impacts of IAS on biodiversity, the

economy and human health and well-being must all be taken into account when

deciding whether or not to include a species on the Union list. Paragraph 3.4 of the

European Strategy on IAS sets out the key approaches and tools for “IAS prevention and

mitigation and the development of improved criteria, techniques and capacity for their

effective use”.120 In this regard, “strategies, legal frameworks and measures need to

follow and support the key approaches supported by the CBD Guiding Principles”.121

116 Article 22(1)-(2) IAS Regulation. 117 Trouwborst 2015, p. 88. 118 Genovesi & Shine 2004, p. 13. 119 CBD COP 6, Decision VI/23, ‘Alien Species that Threaten Ecosystems, Habitats or Species’, 2002, p. 254. 120 Genovesi & Shine 2004, p. 22-23. 121 Ibid.

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These include the precautionary approach in Guiding Principle 1, the three-stage

hierarchical approach in Guiding Principle 2 and the ecosystem approach in Guiding

Principle 3 of the CBD Guiding Principles.122 The ecosystem approach and the

precautionary approach both should be present in the listing process. CBD Guiding

Principle 3 states that “measures to deal with IAS should, as appropriate, be based on

the ecosystem approach”. This approach is a strategy for “the integrated management

of land, water and living resources within a given ecological unit, that promotes

conservation and sustainable use in an equitable way, based on the application of

appropriate scientific methodologies”.123 Also relevant for the ecosystem approach is

that it "requires adaptive management to deal with the complex and dynamic nature of

ecosystems and the absence of complete knowledge or understanding of their

functioning: ecosystem processes are often non-linear, and the outcome of such

processes often shows time-lags”.124 The ecosystem approach thus also recognises the

importance of the precautionary principle in the absence of complete scientific

evidence. It is quite evident by now that the precautionary principle is supposed to be

present in the listing process, as is been discussed in section 3.2 above. As already

outlined, the principle is explicitly advocated by the CBD Guiding Principles and the

European Strategy on IAS. For the IAS Regulation to be compatible with this, efforts to

detect and prevent unintended introductions, decisions on deliberate introductions,

consideration of eradication, containment and control measures related to already

established IAS and carrying out risk assessments should all be based on the

precautionary approach. In addition, lack of scientific certainty should not be used as a

reason for delaying or failing to take measures to avoid or minimize the threat of IAS.

Consequently, the risk assessments in Article 5, and thus the criteria in Article 4(3) for

deciding which species should be included on the Union list, should both comply with

the precautionary principle.

Guiding Principle 10 is about the intentional introduction of IAS. Paragraph 1 states that

“no first-time intentional introduction or subsequent introductions of an alien species

122 CBD COP 6, Decision VI/23, ‘Alien Species that Threaten Ecosystems, Habitats or Species’, 2002, Annex, p. 257-258. 123 Shine, Williams & Gündling 2000, p. 31. 124 CBD COP 5, Decision V/6, ‘Ecosystem approach’, 2000, p. 103-109.

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already invasive or potentially invasive within a country should take place without prior

authorization from a competent authority of the recipient States” and that “states

should make all efforts to permit only those species that are unlikely to threaten

biological diversity”.125 This is also underlined by the European Strategy on IAS,

indicating that “proposed introductions are assessed through a comprehensive

screening system based on risk analysis” and that “states make all efforts to permit only

those species that are unlikely to threaten biodiversity”.126 In this regard, paragraph 5.2.3

of the European Strategy on IAS states that “to facilitate common approaches to

decision-making on proposed introductions and avoid unjustifiable trade restrictions,

work towards a regional or subregional species listing system where measures are not

already established, consistent with European and international law”.127 Additionally,

‘Box 15’ describes the possible components for such an alien species listing system,

consisting of a black list, a white list and a grey list.128 The black list involves a system of

“species whose introduction is strictly regulated, following a risk assessment prior to

species listing”, where priority should be given to: “species already identified as highly

invasive in one or more European states, species proven to be invasive in other regions,

species that are likely to cause problems to several European states, are not yet present

there and have a high potential of introduction”.129 The white list involves “species

classified as low risk following a risk assessment or based on long-standing experience”,

in which the introduction of specimens of these species may be permitted without

restriction or subject to conditions, but where uncontrolled release of these species

should not be encouraged.130 Finally, the grey list contains a kind of residual category,

consisting, for example, of species related to species on the black or white list. This way

the listing system is dynamic, “making it possible to transfer a species to a different list

if scientifically justified”.131 Paragraph 2 of Guiding Principle 10 again stresses the

significance of the precautionary approach in the context of “decisions concerning

intentional introductions, including within a risk analysis framework”.132

125 CBD COP 6, Decision VI/23, ‘Alien Species that Threaten Ecosystems, Habitats or Species’, 2002, Annex, p. 260. 126 Genovesi & Shine 2004, p. 31. 127 Ibid., p. 32. 128 Ibid. 129 Ibid. 130 Ibid. 131 Ibid. 132 CBD COP 6, Decision VI/23, ‘Alien Species that Threaten Ecosystems, Habitats or Species’, 2002, Annex, p. 260.

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3.4 Interim conclusion

The CBD and the Bern Convention have contributed substantially to the development

of the IAS Regulation. The huge amount of guidance in these legal frameworks on how

to manage IAS is very significant for the protection of biodiversity in the EU. For this

reason, these legal frameworks have been selected in this research to constitute the

overarching international framework against which the IAS Regulation will be assessed.

The CBD Guiding Principles and the European Strategy on IAS are of particular

importance for the effective implementation of Article 8(h) of the CBD and Article

11(2)(b) of the Bern Convention. Due to the wide range of guidance provided in the CBD

Guiding Principles and the European Strategy on IAS, a selection was made based on

relevance to the listing process of IAS under the IAS Regulation. This selection consists

of the guidelines mentioned in section 3.3 above. These are the ecosystem approach, the

precautionary approach and the development of a comprehensive and dynamic listing

system.

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Chapter 4: The application of the assessment framework

In this chapter, in order to obtain a correct and comprehensive answer to the research

questions, two different assessments are performed. First, the assessment framework

will be applied to the criteria in Articles 4 and 5 of the IAS Regulation (section 4.1) and

subsequently the assessment framework will be applied to the decision-making

procedure for drawing up the Union list (section 4.2).

4.1 Assessing the criteria in the listing process of the IAS Regulation

This section answers the first sub-question: to what extent do the criteria in Articles 4

and 5 of the IAS Regulation contribute to the effective implementation of the CBD

Guiding Principles and the European Strategy on IAS? The cumulative set of criteria in

Article 4(3) of the IAS Regulation has some limitations. The meaning of various parts in

the criteria are not immediately clear at first glance. First of all, Article 4(3)(b) is rather

vague. Which evidence can be considered acceptable for the application of this

provision is not further specified by the EC.133 Furthermore, the phrase “may also have

an adverse impact on human health or the economy” in component (c) is questionable.

It is not obvious what exactly is meant by these categories and what is covered by them.

If it is not clear what is actually meant, there is a risk that there is too much room left

for interpretation. In these situations, it must be recognised that “different stakeholders

interpret environmental policy issues in differing, and sometimes conflicting, ways”.134

In this regard, it is also not very convenient that the criteria of Article 4(3) are applied

with consideration to the socio-economic aspects.135 Including inter alia socio-economic

aspects in the listing process seems to be a strategic tool, because it creates greater

political significance, which would greatly help nature conservationists to argue their

case.136 But, “economic arguments are expected to be convincing to policy makers but

do no not necessarily reflect the strong support for biodiversity”.137 The introduction of

133 European Parliament 2017, p. 69. 134 Tinch and others 2018, p. 1764. 135 Article 4(6) IAS Regulation. 136 Heink and others 2018, p. 1670. 137 Ibid., p. 1674.

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economic incentives in environmental policy instruments increases the likelihood of

crowding out the incentives for biodiversity conservation.138

The risk assessments set out in Article 5(1) of the IAS Regulation should be

comprehensive, transparent and of good quality in order to ensure that species that pose

a significant threat to biodiversity are included on the Union list. The criteria were

already criticised by the European Parliament in 2015, because the EC “did not provide

a detailed description of the application of points (a) to (h) of Article 5(1) of the

regulation, including the methodology to be applied in the risk assessments”.139

However, in 2018 the EC did provide such a detailed description of the application of

the criteria in Article 5(1), including a methodology to be applied.140 With the arrival of

this long-awaited document, the criteria of Article 5(1) are consistent with all of the 14

minimum criteria set out in chapter 2 above. This ensures that the risk assessments

carried out on the basis of this detailed description and methodology are at least

comprehensive and of good quality. However, because no weight is given to the criteria,

it is unclear which interests prevail when deciding which species should be included on

the Union list. The risk assessments are therefore not transparent.

The absence of the precautionary principle in the criteria set out in Articles 4 and 5 of

the IAS Regulation is also a serious deficiency in the listing process. The principle has

only been mentioned twice in the IAS Regulation. The last sentence of paragraph 20 of

the preamble states, “emergency measures at Union level would equip the Union with

a mechanism to act swiftly in case of presence or imminent danger of entry of a new IAS

in accordance with the precautionary principle” and the last sentence of Article 8(5)

states, “any withdrawal of a permit shall be justified on scientific grounds and, where

scientific information is insufficient, on the grounds of the precautionary principle”.

Finally, Article 10 does not expressly mention the precautionary approach, but when

adopting emergency measures reference is made to its use with the wording

138 Tinch and others 2018, p. 1763-1788. 139 European Parliament 2017, p. 69. 140 Commission Delegated Regulation (EU) 2018/968 of 30 April 2018 supplementing Regulation (EU) No 1143/2014 of the European Parliament and of the Council with regard to risk assessments in relation to invasive alien species, OJ L 174, p. 5-11.

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“preliminary scientific evidence”.141 Hence, the fact that the precautionary principle is

only mentioned twice in the Regulation does not appear to be in line with the CBD

Guiding Principles and the European Strategy on IAS, where the precautionary

approach is explicitly emphasised in the context of IAS. What is meant by the wording

“based on available scientific evidence” in components (a)-(c) of Article 4(3) is rather

ambiguous. It does not necessarily indicate the need for robust or comprehensive or

conclusive scientific evidence, neither does it indicate what evidence is sufficient to fall

within the scope of “available scientific evidence” and whether or not the precautionary

principle is taken into consideration.142 The methodology to be applied in the risk

assessments as provided for in Article 5(3) could have ensured the inclusion of the

precautionary principle. Unfortunately, the EC has also let this possibility pass, as the

methodology does not endorse the precautionary approach either.143

The idea of developing three separate lists, as advocated by the European Strategy on

IAS, was also not welcomed by the EU. Several stakeholders consulted on the

development of the IAS Regulation prior to its existence. A much-discussed topic was

how the lists of IAS, for which spread will be prevented, would be established. A ‘black

list’, a ‘white list or positive list’ or a ‘combined system of white and black lists’ were the

three options proposed.144 This white list approach “would presume that no species can

be released into the wild, with due exceptions”.145 A benefit of such an approach “would

be to send a strong and clear message to the public and practitioners that releasing

species into the wild is not acceptable, unless proven safe”.146 The white list approach

was also considered to be the most efficient approach because the precautionary

principle has a clear role to play in this respect, as it avoids the need to carry out a risk

assessment for each potentially invasive species in order to blacklist them and thus slow

141 Article 10(1), (4) IAS Regulation. 142 Davies 2016, p. 198. 143 Commission Delegated Regulation (EU) 2018/968 of 30 April 2018 supplementing Regulation (EU) No 1143/2014 of the European Parliament and of the Council with regard to risk assessments in relation to invasive alien species, OJ L 174, p. 6. 144 Can be accessed on: https://circabc.europa.eu/ui/group/4cd6cb36-b0f1-4db4-915e-65cd29067f49/library/4fb32065-e2c8-4ed1-824a-d4e085fbfed1/details. 145 Can be accessed on: https://circabc.europa.eu/ui/group/4cd6cb36-b0f1-4db4-915e-65cd29067f49/library/dc67bfef-9ef6-433c-ba99-48b45f6d26a8/details. 146 Ibid.

34

down prevention.147 The IAS Regulation consists only of a ‘black list’. This approach

poses several problems. Firstly, the prevention or the management of adverse effects of

widespread IAS could be considered by some MS as “unfeasible and not cost-

effective”.148 This can lead to exclusion of IAS which are already causing significant

damage.149 Secondly, as each MS will itself have to bear the financial burden of any

future containment action, there is a risk that the list is “insufficiently dynamic and

nonrepresentative” and that its content may be influenced by various stakeholders from

certain sectors of industry, which reduces the likelihood of identifying and including

potential threats.150 Finally, the Regulation does not concretely define which specific

criteria are decisive for including a species on the Union list or not. This creates the risk

that the Union list will be “short and driven by incentives that do not consider

simultaneously the costs and benefits to multiple stakeholders”.151

That the Union list is in jeopardy of being affected by various industry sectors can be

seen, for example, from the statements of MS during the meeting of the European

Council that led to the final adoption of the IAS Regulation.152 In the discussion,

Denmark and Finland state that they are confident that the American Mink (‘Neovison

vison’) will not be included on the Union list, because the species deserves special

attention as they “are widely used and provide significant socio-economic benefits in

MS”.153 The economic value of the American mink continues to give rise to conflicts of

interest between MS and influences the decisions as to whether or not the American

mink should be included on the Union list.154 The European Parliament has also

expressed its doubts in this regard, considering that “the reasons for including species

on the Union's draft list are not based on scientific but on political criteria”.155 Moreover,

the European Parliament states that “the listing of the species is not based on

standardised risk assessment and methodology, but rather on the political will of the

147 Ibid. 148 Tollington and others 2017, p. 113. 149 Ibid. 150 Ibid. 151 Ibid., p. 113-14. 152 Can be accessed on: http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2013266%202014%20ADD%201; See also Gualtieri 2019, p. 117-124. 153 Ibid. 154 Tollington and others 2017, p. 116; Genovesi and others 2015, p. 1308. 155 European Parliament 2017, p. 69.

35

MS”.156 Therefore the EC has failed “to address the problem of IAS in a comprehensive

manner, so as to protect native biodiversity and ecosystem services, as well as to

minimise and mitigate the human health or economic impacts that these species could

have”.157 The “final decision on which IAS will become part of the Union list – the only

targeted with stringent measures – is at risk of being driven by policy more than by

science”.158

4.2 Assessing the decision-making procedure for drawing up the Union list

This section answers the second sub-question: is the decision-making procedure for

drawing up the Union list sufficient to ensure a dynamic and representative list? As

mentioned above, the EC's draft list was not well received by the European Parliament

in 2015, concluding that “the initial list overlooks species that are among the most

detrimental IAS in Europe” while “some terrestrial plant and mammal species comply

with the criteria and a robust risk assessment is available”.159 This led to serious doubts

by several national authorities, stakeholders and the general public about “the future

effectiveness of the IAS Regulation”.160 Unfortunately, these complaints do not seem to

have led to a change in the EC's policy on IAS. Although the more detailed description

of the application of the criteria in Article 5(1) of the IAS Regulation was a useful

contribution, the methodology to be applied in the risk assessments still falls short due

to the lack of the precautionary approach therein. That the listing process of Articles 4

and 5 of the IAS Regulation still does not meet the required standards can be deduced

from more recent criticism. The current Union list was last updated in 2019 and consists

of 66 IAS.161 The draft version received a lot of feedback on the website of the EC,

especially about the fact that once again the American mink has not been included on

156 Ibid. 157 Ibid. 158 Genovesi and others 2015, p. 1308-09. 159 European Parliament 2017, p. 70. 160 Ibid. 161 Commission Implementing Regulation (EU) 2019/1262 of 25 July 2019 amending Implementing Regulation (EU) 2016/1141 to update the list of invasive alien species of Union concern, OJ L 199.

36

the Union list.162 Several organisations from different MS have expressed their concerns

in this regard.163 By way of illustration, some of these positions are presented below.

“The American mink has a massive impact on the environment and the scientific

evidence shown in the Risk assessment presented by Portugal, and prepared by

more than 20 experts of many different countries clearly indicates this species

should be an immediate priority for inclusion on the Union List.”164

“Despite the scientific acknowledgement that the highly invasive American mink is

a prime candidate for inclusion in the Union List, some EU MS – primarily in the

rapidly diminishing number of countries where fur production is still legally

permitted as a commercial activity - have pushed to ensure that it is not included

on the list.”165

“The fact that the listing of this species is being blocked by MS, using economic

arguments, is undermining the effectiveness of the IAS regulation.”166

“Failing to urgently include the American mink – one of the most damaging IAS in

Europe - on the Union list represents a dangerous precedent and risks undermining

the credibility of the IAS Regulation as a whole. Failure to list the American mink

as an IAS of Union concern demonstrates a lack of commitment to protecting

native biodiversity and tackling the problem of IAS, and would also be in conflict

with the EU’s 2020 Biodiversity Strategy and achieving the Aichi biodiversity

targets.”167

162 Can be accessed on: https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/2124-Update-of-the-list-of-Invasive-Alien-Species-of-Union-concern/feedback?p_id=4101650. 163 For example: ‘Humane Society International/Europe’ from the Netherlands; ‘Deutscher Tierschutzbund’ from Germany; ‘Eurogroup for Animals’ from Italy; ‘International Union for Conservation of Nature’ from Belgium; ‘Suomen luonnonsuojeluliitto’ from Finland; ‘WWF Spain’ from Spain; ‘WWF European Policy Programme’ from Belgium. 164 Can be accessed on https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/2124-Update-of-the-list-of-Invasive-Alien-Species-of-Union-concern/feedback?p_id=4101650, feedback from ‘WWF Spain’ from Spain (feedback reference: F462026). 165 Ibid., feedback from ‘Humane Society International/Europe’ from the Netherlands (feedback reference: F461527). 166 Ibid., feedback from ‘WWF European Policy Programme’ from Belgium (feedback reference: F461838). 167 Ibid., feedback from ‘Human Society International/Europe’ from the Netherlands (feedback reference: F461527).

37

The presumption that the American mink is not included on the Union list because of

socio-economic benefits seems very probable and the decision-making procedure for

drawing up the Union list is therefore highly questionable. Looking at the risk

assessment of the American mink, it becomes clear that the species has shown signs of

invasiveness in 19 MS.168 The invasiveness of the American mink and its very high

ecological impact are demonstrated in the risk assessment by an abundance of scientific

evidence, leading to evident conclusions (see Table 1).

Table 1: Concluding results on entry, establishment, spread and impact of the American

Mink.169

Response Confidence

Summarise Entry Very likely High

Summarise Establishment Very likely Very high

Summarise Spread Rapidly High

Summarise Impact Major High

Conclusion of the Risk Assessment High High

The risk assessment clearly shows that the inclusion of the American mink on the Union

list should have been given the highest priority. Article 4(3) of the IAS Regulation

provides that IAS shall be included on the Union list if they meet all the criteria set out

therein. The American mink definitely meets all those criteria (see Appendix 2). A small

comparison with the concluding results of the risk assessments of two other IAS, which

are by contrast included on the Union list, creates even more confusion (see Table 2).

The results of the raccoon dog (‘Nyctereutes procyonoides’) and the pallas’s squirrel

(‘Callosciurus erythraeus’) are similar to the results of the American mink, but the mink

scores even higher on the level of confidence of the scientific evidence available in the

risk assessment.

168 Can be accessed on: https://circabc.europa.eu/sd/a/a56cd4b4-4b2c-4b7f-979e-acda14ef2bfc/Neovison%20vison.pdf. 169 Ibid., p. 48-48.

38

Table 2: Concluding results on entry, establishment, spread and impact of the American

mink, the raccoon dog and the pallas’s squirrel.170

American

mink

Raccoon

dog

Pallas’s

squirrel

Response Confidence Response Confidence Response Confidence

Summarise

Entry

Very likely High Very likely Very high Very likely High

Summarise

Establishment

Very likely High Very likely Very likely Very likely High

Summarise

Spread

Rapidly High Very likely Very high Moderately Medium

Summarise

Impact

Major High Major Medium Major Medium

Conclusion of

the Risk

Assessment

High High High Medium High Medium

It clearly demonstrates that there is no lack of high-quality risk assessments, but that

there are weaknesses in the decision-making process for drawing up the Union list.

What exactly goes wrong in this procedure is difficult to prove because, as mentioned

in section 2.2 above, almost all documents of the Committee on IAS are confidential, as

stated in the Rules of Procedure. However, ‘summary records’ of the meetings of the

Committee on IAS are available. The summary record of the 11th meeting of the

Committee on IAS on 14 December 2018 shows that the EC made an introduction of

several species for which the Scientific Forum on IAS had approved the risk assessment,

including the American mink.171 In this summary record, it is stated that “while there

was an overall agreement that feral populations of American mink pose a threat to

biodiversity, several MS did not consider the listing of the species an appropriate

solution, as it would pose a disproportionate burden to the flourishing fur sector and

170 The risk assessment of the raccoon dog can be accessed on: https://circabc.europa.eu/sd/a/9084179b-b596-4c4a-ada7-19f7c144ce2b/Nyctereutes%20procyonoides%20RA.pdf; the risk assessment of the pallas’s squirrel can be accessed on: https://circabc.europa.eu/sd/a/1ad0c810-0b7c-4620-b1c1-6b2fc59e92c3/Callosciurus%20erythraeus%20-%20GBNNRA%20based%20-%20IAS%20workshop.pdf. 171 Can be accessed on: https://ec.europa.eu/transparency/regcomitology/index.cfm?do=search.result.

39

the national administrations”.172 In the 12th meeting of the Committee on IAS on 14 June

2019, the EC submitted a draft implementing act for vote, which did not include the

American mink.173 In Annex II to the summary record, the EC states that it has

considered the public feedback on the draft act, but that it has decided not to include

the American mink in the proposal “after having consulted the MS at the IAS

Committee” and that therefore the proposal “follows the regulatory provisions, in

particular Article 4(6) of Regulation 1143/2014”.174 However, exactly which MS argued in

favour of not including the American mink on the Union list has not been made public.

That the precautionary principle is absent in the criteria set out in Articles 4 and 5 of

the IAS Regulation is clear, but this raises the question of whether, on the contrary, the

precautionary principle is taken into account in the decision-making procedure for

drawing up the Union list. In order to find an answer to this question, two different risk

assessments have been examined. The concluding results on entry, establishment,

spread and impact of the golden mussel (‘Limnoperna fortunei’) and the common

brushtail possum (‘Trichosurus Vulpecula’) show that these species pose a potential

threat to biodiversity in the EU (see Table 3).

Table 3: Concluding results on entry, establishment, spread and impact of the golden

mussel and the common brushtail possum.175

Golden mussel Common brushtail possum

Response Confidence Response Confidence

Summarise Entry Likely Medium Moderately likely Medium

Summarise

Establishment

Likely Medium Very likely High

Summarise Spread Rapidly Medium Moderately likely Medium

Summarise Impact Major Medium Major Medium

Conclusion of the Risk

Assessment

High Medium High Medium

172 Ibid. 173 Ibid. 174 Ibid. 175 Roy, Rabitsch & Scalera 2018, Annex 5 (golden mussel) & Annex 8 (common brushtail possum).

40

The results are roughly similar to the results of the raccoon dog and the pallas’s squirrel,

but the golden mussel and the common brushtail possum are not included (yet) on the

Union list. The conclusions of the risk assessments of the golden mussel and the

common brushtail possum state that the confidence in the conclusion “is limited due to

transferability of data”.176 This is attributable to the fact that these species are not yet

established in the EU, unlike the raccoon dog and the pallas’s squirrel, which makes it

difficult to predict what impact they will have in a different habitat with different

climatic conditions. However, available evidence in the risk assessments suggests that

the golden mussel and the common brushtail possum can have a significant impact on

biodiversity in the EU.177 The common brushtail possum was also one of the species

introduced by the EC in the summary record of the 11th meeting of the Committee on

IAS for which the Scientific Forum on IAS had approved the risk assessment.178 In the

discussion, some MS “opposed listing the species as disproportionate”, but other MS

“supported listing out of precaution”.179 The decision not to list the species demonstrates

the absence of application of the precautionary principle. The decision-making

procedure on the golden mussel is still ongoing and has been submitted to the Scientific

Forum on IAS for its opinion.180 It remains to be seen whether the precautionary

approach will be applied here, which is unlikely to happen due to a similar lack of

evidence as in the case of the common brushtail possum.

176 Ibid. 177 Ibid. 178 Can be accessed on: https://ec.europa.eu/transparency/regcomitology/index.cfm?do=search.result. 179 Ibid. 180 Can be accessed on: https://circabc.europa.eu/ui/group/98665af0-7dfa-448c-8bf4-e1e086b50d2c/library/4a132cab-14a8-4871-be10-205010dcb1b6.

41

Chapter 5: Conclusion

The IAS Regulation was seen by many as a milestone in the conservation of nature and

biodiversity in the EU, but many questions can be raised about the development of the

criteria in the core provisions of the Regulation and the decision-making procedure for

drawing up the Union list. The Union list currently consist of 66 IAS, but whether this

list is dynamic and representative can be legitimately disputed.

5.1 Answer to the research questions

With regard to the first sub-question, the criteria in Articles 4 and 5 of the IAS

Regulation are not suitable for making a sufficient contribution to the effective

implementation of the CBD Guiding Principles and the European Strategy on IAS. The

criteria in Article 4(3) are opaque, leaving too much room for manoeuvre. This could

lead to misinterpretation that prioritises economic over environmental objectives,

overshadowing the Regulation’s objective of preserving biodiversity. In addition, the

weighing of the criteria in Articles 4 and 5 is not clearly defined anywhere and therefore

leaves room for politically influenced outcomes. Where the socio-economic aspects for

MS outweigh the significant negative impacts of IAS on biodiversity, related ecosystem

services, human health and the economy, the ecosystem approach is not sufficiently

taken into account when balancing the different interests. The fact that the

precautionary principle is not mentioned anywhere in the criteria or methodology for

carrying out risk assessments is incomprehensible, as the principle is particularly

relevant in the case of IAS. Risk assessments of alien species often suffer from a lack of

convincing scientific evidence, contradictory evidence or context-dependent variability.

The absence of the precautionary principle in the core provisions of the IAS Regulation

renders the criteria set out in Articles 4 and 5 insufficient to effectively implement the

CBD Guiding Principles and the European Strategy on IAS. Finally, the black list only

approach chosen inevitably brings a number of problems. Preventing or managing the

negative effects of widespread IAS could be considered unfeasible, ineffective or too

costly, and the content of the Union list could be influenced by different stakeholders

from certain industry sectors. This reduces the likelihood of identifying and including

42

potential threats and may lead to the exclusion of IAS that are already causing

significant harm, making the Union list unrepresentative. Since it is also not possible to

transfer species to other lists, the Union list is not dynamic either.

With regard to the second sub-question, the decision-making procedure for drawing up

the Union list does not ensure a dynamic and representative list either. The American

mink, one of the most invasive species in the EU has not been included on the Union

list, despite the abundant scientific evidence available and the criticism from the

European Parliament and many nature conservation organisations. The summary

records of the meetings of the Committee on IAS clearly demonstrate that the EC gives

priority to the socio-economic arguments of some MS rather than to the robust

scientific evidence proving the high threat to biodiversity posed by the American mink.

Moreover, the exclusion of the common brushtail possum from the Union list indicates

that the precautionary principle is not applied in the decision-making procedure either.

As with many other alien species, the level of confidence of the risk assessment is

undermined by scientific uncertainty. Timely action to prevent damage to biodiversity

based on the precautionary approach could help address this problem. Since the

precautionary principle is not applied in the decision-making procedure, the Union list

unfortunately does not focus on prevention and therefore does not maintain the

consensus that prevention is better than cure. In addition, the decision-making

procedure leads to a relatively short Union list as the introduced species have to be

approved by the Committee on IAS by qualified majority. Consequently, the decision-

making procedure for drawing up the Union list does not ensure that the list is dynamic

and representative.

5.2 Reflection and recommendations

The research carried out exposes significant deficiencies in the criteria of Articles 4 and

5 of the IAS Regulation and in the decision-making procedure for drawing up the Union

list. The shortcomings found in the research are sufficient to conclude that the listing

process of IAS under the IAS Regulation is not compatible with international and

European law. However, the research also contains a number of limitations. First of all,

due to the procedures governing the voting process and the restrictions on the

43

accessibility of the minutes of the Committee on IAS influencing the proposals, certain

conclusions can only be inferred from the feedback on the Union list published on the

website of the EC and the summary records of the Committee on IAS. Secondly, there

is no clear mechanism for weighting the criteria set out in Articles 4 and 5 of the IAS

Regulation, which makes it impossible to identify which criteria have been decisive in

the decision-making procedure for drawing up the Union list. Considering the future of

the IAS Regulation, the cause of biodiversity protection would be much better served if

the precautionary principle were part of the criteria set out in Articles 4 and 5 of the IAS

regulation or of the decision-making procedure for drawing up the Union list. In

addition, instead of producing one black list, the inclusion of a white and grey list and

allocating species of concern in the EU habitat on one of these lists, based on

transparent interpretations guidelines of listing criteria, would help steer the IAS

containment action, research and funding priorities and lead to a more effective

instrument for protecting biodiversity. However, a combined system of a black, white

and grey list, taking into account the precautionary principle, can potentially cause

problems with the WTO trade rules, as the EU and all its MS are members of the WTO.

In this regard, the WTO Agreement on the Application of Sanitary and Phytosanitary

Measures (‘SPS Agreement’) is specifically relevant, as it provides an international

framework for all sanitary and phytosanitary measures which may affect international

trade.181 One of the key pathways for the introduction of IAS into the EU is trade and

therefore, once species are included on the Union list, “border and transportation

controls must inter alia be applied to ensure that the IAS of Union Concern are not

intentionally or unintentionally brought into the EU”.182 The aim of the SPS Agreement

is to ensure that the application of such regulatory measures “is not an arbitrary or

unjustified restriction on trade”.183 In order to answer the question whether the scope

of the IAS Regulation is limited by the SPS Agreement, further research is needed and

recommended.

181 WTO Agreement on the Application of Sanitary and Phytosanitary Measures, 15 April 1994, UNTS 1867. 182 Davies 2016, p. 199. 183 Ibid.

44

Bibliography

1. Primary Sources

1.1 International Legislation

Convention on Wetlands of International Importance especially as Waterfowl Habitat,

2 February 1971, UNTS 996, p. 245-268.

Convention on the Conservation of Migratory Species of Wild Animals, 23 June 1979,

UNTS 1651, p. 333-497.

Convention on the Conservation of European Wildlife and Natural Habitats, 19

September 1979, ETS 104, p. 1-10.

Convention on Biological Diversity, 5 June 1992, UNTS 1760, p. 79-307.

WTO Agreement on the Application of Sanitary and Phytosanitary Measures, 15 April

1994, UNTS 1867, p. 493-507.

1.2 EU Legislation

Council Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild

Fauna and Flora, 21 May 1992, OJ L206, p. 7-50.

Directive 2009/147/EC of the European Parliament and of the Council on the

Conservation of Wild Birds, 30 November 2009, OJ L 20, p. 7-25.

Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16

February 2011 laying down the rules and general principles concerning mechanisms for

45

control by Member States of the Commission’s exercise of implementing powers, OJ L

55, p. 13-18.

Consolidated version of the Treaty on the European Union, 26 October 2012, OJ C326,

p. 13-45.

Consolidated version of the Treaty on the Functioning of the European Union, 26

October 2012, OJ C 326, p. 47-390.

Regulation (EU) No 1143/2014 of the European Parliament and of the Council of 22

October 2014 on the prevention and management of the introduction and spread of

invasive alien species, OJ L 317, p. 35-55.

Commission Implementing Regulation (EU) 2016/1141 of 13 July 2016 adopting a list of

invasive alien species of Union concern pursuant to Regulation (EU) No 1143/2014 of the

European Parliament and of the Council, OJ L 189, p. 4-8.

Commission Implementing Regulation (EU) 2017/1263 of 12 July 2017 updating the list of

invasive alien species of Union concern established by Implementing Regulation (EU)

2016/1141 pursuant to Regulation (EU) No 1143/2014 of the European Parliament and of

the Council, OJ L 182, p. 37-39.

Commission Delegated Regulation (EU) 2018/968 of 30 April 2018 supplementing

Regulation (EU) NO 1143/2014 of the European Parliament and of the Council with

regard to risk assessments in relation to invasive alien species, OJ L 174, p. 5-11.

Commission Implementing Regulation (EU) 2019/1262 of 25 July 2019 amending

Implementing Regulation (EU) 2016/1141 to update the list of invasive alien species of

Union concern, OJ L 199, p. 1-4.

46

1.3 Judgments of the Court of Justice of the European Union

Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse

Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer

en Visserij [2004] ECR I-07405.

Case C-77/09 Gowan Comércio Internacional e Serviços Lda v Ministero della Salute

[2010] ECR I-13533.

2. Secondary Sources

2.1 Books

Bowman 2016

M. Bowman, ‘Law, legal scholarship and the conservation of biological diversity: 2020

vision and beyond’, in: M. Bowman, P. Davies and E. Goodwin, Research Handbook on

Biodiversity and Law (Edward Elgar Publishing 2016), p. 3-54.

Davies 2016

P. Davies, ‘Alien invasive species: is the EU’s strategy fit for purpose?’, in: M. Bowman,

P. Davies and E. Goodwin, Research Handbook on Biodiversity and Law (Edward Elgar

Publishing 2016), p. 184-218.

Gualtieri 2019

D. Gualtieri, Environmental Governance of Invasive Species: an EU Perspective

(Routledge Research in International Environmental Law 2019), p. 1-170.

47

2.2 Articles

Beninde and others 2015

J. Beninde, M.L. Fisher, A. Hochkirch, A. Zink (2015), ‘Ambitious Advances of the

European Union in the Legislation of Invasive Alien Species’, Conservation Letters 8(3),

p. 199-205.

Bonesi & Palazon 2007

L. Bonesi & S. Palazon (2007), ‘The American Mink in Europe: status, impacts, and

control’, Biological Conservation 134(4), p. 470-483.

Genovesi & Shine 2004

P. Genovesi & C. Shine (2004), ‘European strategy on invasive alien species: Convention

on the Conservation of European Wildlife and Habitats (Bern Convention)’, Nature and

Environment 137, p. 1-68.

Genovesi and others 2015

P. Genovesi, C. Carboneras, M. Vilà & P. Walton (2015), ‘EU adopts innovative legislation

on invasive species: a step towards a global response to biological invasions?’, Biological

Invasions 17(5), p. 1307-1311.

Heink and others 2018

U. Heink, A. van Herzele, G. Bela, Á. Kalóczkai & K. Jax (2018), ‘Different arguments,

same conclusions: how is action against invasive alien species justified in the context of

European policy?’, Biodiversity and Conservation 27(7), p. 1659-1677.

Macdonald & Harrington 2003

D.W Macdonald & L.A. Harrington (2003), ‘The American Mink: The triumph and

tragedy of adaption out of context’, New Zealand Journal of Zoology 30(4), p. 421-441.

48

Roy and others 2018

H.E. Roy, W. Rabitsch, R. Scalera, A. Stewart, B. Gallardo, P. Genovesi, F. Essl, T.

Adriaens, S. Bacher, O. Booy, E. Branquart, S. Brunel, G.H. Copp, H. Dean, B. D’hondt,

M. Josefsson, M. Kenis, M. Kettunen, M. Linnamagi, F. Lucy, A. Martinou, N. Moore, W.

Nentwig, A. Nieto, J. Pergl, J. Peyton, A. Roques, S. Schindler, K. Schönrogge, W.

Scholarz, P.D. Stebbing, T. Trichkova, S. Vanderhoeven, J. van Valkenburg & A. Zenetos

(2018), ‘Developing a framework of minimum standards for the risk assessment of alien

species’, Journal of applied ecology 55(2), p. 526-538.

Shine, Williams & Gündling 2000

C. Shine, N. Williams & L. Gündling (2000), ‘A Guide to Designing Legal and

Institutional Frameworks on Alien Invasive Species’, No. 40 IUCN, p. 1-138.

Tinch and others 2018

R. Tinch, R. Bugter, M. Blicharska, P. Harrison, J. Haslett, P. Jokinen, L. Mathieu & E.

Primmer (2018), ‘Arguments for biodiversity conservation: factors influencing their

observed effectiveness in European case studies’, Biodiversity and Conservation 27(7), p.

1763-1788.

Tollington and others 2017

S. Tollington, A. Turbé, W. Rabitsch, J.J. Groombridge, R. Scalera, F. Essl & A. Shwartz

(2017), ‘Making the EU Legislation on Invasive Alien Species a Conservation Success’,

Conservation Letters 10(1), p. 112-120.

Trouwborst 2015

A. Trouwborst (2015), ‘EU Regulation 1143/2014 and the Bern Convention: Allied Forces

in the War on Invasive Alien Species in Europe’, European Energy and Environmental

Law Review 24(4), p. 83-99.

Vanderhoeven and others 2017

S. VanderHoeven, E. Branquart, J. Casaer, B. D’hondt, P.E. Hulme, A. Shwartz, D.

Strubbe, A. Turbé, H. Verreycken & T. Adriaens (2017), ‘Beyond protocols: improving

49

the reliability of expert-based risk analysis underpinning invasive species policies’,

Biological Invasions 19(9), p. 2507-2517.

2.3 Reports

Genovesi, Carnevali & Scalera 2015

P. Genovesi, L. Carnevali & R. Scalera (2015), ‘The Impact of Invasive Alien Species on

Native Threatened Species in Europe’, Technical Report for the European Commission,

p. 1-18.

Kettunen and others 2009

M. Kettunen, P. Genovesi, S. Gollasch, S. Pagad, U. Starfinger, P. ten Brink & C. Shine

(2009), ‘Technical support to EU strategy on invasive species (IAS) – Assessment of the

impacts of IAS in Europe and the EU’, Institute for European Environmental Policy, p. 1-

123.

Roy and others 2014

H.E. Roy, K. Schönrogge, H. Dean, J. Peyton, E. Branquart, S. VanderHoeven, G. Copp,

P. Stebbing, M. Kenis, W. Rabitsch, F. Essl, S. Schindler, S. Brunel, M. Kettunen, L.

Mazza, A. Nieto, J. Kemp, P. Genovesi, R. Scalera & A. Stewart (2014), ‘Invasive alien

species – framework for the identification of invasive alien species of EU concern’,

Report to the European Commission (ENV.B.2/ETU/2013/0026), p. 1-298.

Roy, Rabitsch & Scalera 2018

H.E. Roy, W. Rabitsch & R. Scalera (2018), ‘Study on Invasive Alien Species –

Development of risk assessments to tackle priority species and enhance prevention –

final report’, Publications Office of the European Union, p. 1-839.

Scalera and others 2012

R. Scalera, P. Genovesi, F. Essl & W. Rabitsch (2012), ‘The impacts of invasive alien

species in Europe’, EEA Technical report No 16/2012, Publications Office of the European

Union, p. 1-114.

50

Sundseth 2016

K. Sundseth (2016), ‘Invasive Alien Species: A European Union response’, Publications

Office of the European Union, p. 1-28.

2.4 Documents from EU Institutions

European Commission 2000

Communication from the Commission on the precautionary principle, COM (2000) 1

final, p. 1-28.

European Commission 2006

Communication from the Commission, ‘Halting the loss of biodiversity by 2010 – and

beyond – Sustaining ecosystem services for human well-being’, COM (2006) 216 final, p.

1-15.

European Commission 2008

Communication from the Commission to the Council, the European Parliament, the

European Economic and Social Committee and the Committee of the regions, ‘Towards

an EU Strategy on Invasive Species’, COM (2008) 789 final, p. 1-10.

European Commission 2011

Communication from the Commission to the European Parliament, the Council, the

Economic and Social Committee and the Committee of the Regions, ‘Our life insurance,

our natural capital: an EU biodiversity strategy to 2020’, COM (2011) 244 final, p. 1-16.

European Commission 2011a

European Commission (DG ENV), ‘A Comparative Assessment of Existing Policies on

Invasive Species in the EU Member States and in Selected OECD Countries’, 16

September 2011, p. 1-500.

51

European Commission 2013

Proposal for a Regulation of the European Parliament and of the Council on the

Prevention and Management of the Introduction and Spread of Invasive Alien Species,

9 September 2013, COM (2013) 620 final, p. 1-36.

European Parliament 2017

European Parliament, Resolution of 16 December 2015 on the draft Commission

Implementing Regulation adopting a list of invasive alien species of Union concern

pursuant to Regulation (EU) No 1143/2014 of the European Parliament and of the

Council, 24 November 2017, OJ C 399, p. 68-70.

European Commission 2018

Commission Notice, ‘Managing Natura 2000 sites: The provisions of Article 6 of the

‘Habitats’ Directive 92/43/EEC’, COM (2018) 7621 final, p. 1-85.

2.5 Other Documents

CBD COP 5, Decision V/6, ‘Ecosystem approach’, 2000, p. 103-109.

CBD COP 6, Decision VI/23, ‘Alien Species that Threaten Ecosystems, Habitats or

Species’, 2002, p. 249-261.

CBD Decision X2, ‘The Strategic Plan for Biodiversity 2011-2020 and the Aichi

Biodiversity Targets’, 2010, p. 1-13.

2.6 Websites

<http://alien.jrc.ec.europa.eu/SpeciesMapper> Last accessed 27 March 2020

<https://www.cbd.int/invasive/done.shtml> Last accessed 28 April 2020.

<https://easin.jrc.ec.europa.eu/easin> Last accessed 12 April 2020.

52

<https://ec.europa.eu/environment/nature/invasivealien/index_en.htm> Last

accessed 12 April 2020.

<https://www.coe.int/en/web/bern-convention/recommendations-by-year> Last

accessed 26 April 2020.

<https://circabc.europa.eu/ui/welcome> Last accessed 8 June 2020.

<https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/2124-

Update-of-the-list-of-Invasive-Alien-Species-of-Union-

concern/feedback?p_id=4101650> Last accessed 22 May 2020.

<https://ec.europa.eu/transparency/regcomitology/index.cfm?do=search.result> Last

accessed 9 June 2020.

53

Appendices

Appendix 1:

List of invasive alien species of Union concern.184

Scientific name English name Taxonomic Group

Acacia saligna Golden wreath wattle Plantae

Acridotheres tristis Common or Indian

myna

Aves

Ailanthus altissima Tree of heaven Plantae

Alopochen aegyptiaca Egyptian goose Aves

Alternanthera

philoxeroides

Alligator weed Plantae

Andropogon virginicus Broomsedge bluestem Plantae

Arthurdendyus

triangulatus

New Zealand flatworm Rhabditophora

Asclepias syriaca Milkweed Plantae

Baccharis halimifolia Eastern baccharis Plantae

Cabomba caroliniana Green cabomba Plantae

Callosciurus erythraeus Pallas’s squirrel Mammalia

Cardiospermum

grandiflorum

Balloon vine Plantae

Cortaderia jubata Purple pampas grass Plantae

Corvus splendens Indian house cow Aves

Ehrharta calycina Perennial veldtgrass Plantae

Eichhornia crassipes Water hyacinth Plantae

Elodea nuttallii Nutall’s waterweed Plantae

Eriocheir sinensis Chinese mitten crab Crustacea

184 Commission Implementing Regulation (EU) 2016/1141 of 13 July 2016 adopting a list of invasive alien species of Union concern pursuant to Regulation (EU) No 1143/2014 of the European Parliament and of the Council, OJ L 189; Commission Implementing Regulation (EU) 2017/1263 of 12 July 2017 updating the list of invasive alien species of Union concern established by Implementing Regulation (EU) 2016/1141 pursuant to Regulation (EU) No 1143/2014 of the European Parliament and of the Council, OJ L 182; Commission Implementing Regulation (EU) 2019/1262 of 25 July 2019 amending Implementing Regulation (EU) 2016/1141 to update the list of invasive alien species of Union concern, OJ L 199.

54

Scientific name English name Taxonomic Group

Gunnera tinctoria Chilean rhubarb Plantae

Gymnocoronis

spilanthoides

Spadeleaf plant Plantae

Heracleum

mantegazzianum

Giant hogweed Plantae

Heracleum persicum Persian hogweed Plantae

Heracleum sosnowskyi Sosnowski’s hogweed Plantae

Herpestes javanicus Samll Asian mongoose Mammalia

Humulus scandens Japanese hop Plantae

Hydrocotyle

ranunculoides

Floating pennywort Plantae

Impatiens glandulifera Himalayan balsam Plantae

Lagarosiphon major Curly waterweed Plantae

Lepomis gibbosus Pumpkinseed Pisces

Lespedeza cuneata Chinese bushclover,

sericea

Plantae

Lithobates catesbeianus American bullfrog Amphibia

Ludwigia grandiflora Water primrose Plantae

Ludwigia peploides Floating primrose Plantae

Lygodium japonicum Vine-like fern Plantae

Lysichiton americanus American skunk

cabbage

Plantae

Microstegium vimineum Japanese stiltgrass Plantae

Muntiacus reevesi Mutjac deer Mammalia

Myocastor coypus Coypu Mammalia

Myriophyllum aquaticum Parrot’s feather Plantae

Myriophyllum

hetrophyllum

Broadleaf watermilfoil Plantae

Nasua South American coati Mammalia

Nyctereutes procyonoides Raccoon dog Mammalia

55

Scientific name English name Taxonomic Group

Ondatra zibethicus Muskrat Mammallia

Orconectes limosus Spiny-cheek crayfish Crustacea

Orconectes virilis Virile (northern)

crayfish

Crustacea

Oxyura jamaicensis Ruddy duck Aves

Pacifastacus leniusculus Singal crayfish Crustacea

Parthenium

hysterophorus

Whitetop weed Plantae

Pennisetum setaceum Crimson fountaingrass Plantae

Perccottus glenii Amur sleeper Pisces

Persicaria perfoliata Asiatic tearthumb Plantae

Plotosus lineatus Striped eel catfish Pisces

Procambarus clarkii Red swamp crayfish Crustacea

Procambarus fallax f.

virginalis

Marbled crayfish Crustacea

Procyon lotor Raccoon Mammalia

Prosopis juliflora Mesquite Plantae

Pseudorasbora parva Topmouth gudgeon Pisces

Pueraria montana var.

Lobata

Kudzu vine Plantae

Salvinia molesta Giant salvinia, kariba

weed

Plantae

Sciurus carolinensis Grey squirrel Mammalia

Sciurus niger Bryant’s fox squirrel Mammalia

Tamias sibiricus Siberian chipmunk Mammalia

Therskiornis aethiopicus Sacred Ibis Aves

Trachemys scripta Red eared slider Reptilia

Triadica sebifera Chinese tallowtree Plantae

Vespa velutina nigrithorax Asian hornet Insecta

56

Appendix 2:

Assessment of the American mink on the basis of the criteria in Article 4(3) of the IAS

Regulation.185

Criteria of Article 4(3) IAS Regulation Assessment of the American Mink

(A) They are found, based on available

scientific evidence, to be alien to the

territory of the Union excluding the

outermost regions

The American mink is native to North

America: its natural range extends from

Alaska and Canada through most of

United States, except a few southern

regions as California, Nevada, Arizona,

Utah, New-Mexico and West-Texas. The

species is now present in most of the EU

and is still spreading. The Species is

recorded in these countries in the EU:

Austria, Belgium, Czech Republic,

Denmark, Estonia, Finland, France,

Germany, Greece, Hungary, Ireland, Italy,

Latvia, Lithuania, Luxembourg,

Netherlands, Poland, Portugal, Romania,

Slovakia, Slovenia, Spain, Sweden.186

(B) They are found, based on available

scientific evidence, to be capable of

establishing a viable population and

spreading in the environment under

current conditions and in foreseeable

climate change conditions in one

biogeographical region shared by

more than two Member States or one

marine subregion excluding their

outermost regions

The species is spreading rapidly in

Europe. It is likely that the expansion

occurs both by natural means (from

already established feral populations) and

by human assistance (escapes and

releases from fur farms). American mink

can be considered as an effective invader:

it is an opportunistic predator with a high

reproduction rate, it is capable to adapt to

a number of habitat types, and juveniles

185 All data in the table comes from: https://circabc.europa.eu/sd/a/a56cd4b4-4b2c-4b7f-979e-acda14ef2bfc/Neovison%20vison.pdf. 186 Ibid., p. 5.

57

can disperse long distances from their

natal territories. Thus American mink can

rapidly spread and colonise large areas.187

Successful colonisation observed in very

different climatic and landscape

conditions suggests that the species may

invade most of Europe in the nearest

future unless appropriate measures are

implemented.188

(C) They are, based on available

scientific evidence, likely to have a

significant adverse impact on

biodiversity or the related ecosystem

services, and may also have an adverse

impact on human health or the

economy

The American mink is an invasive

mammal species with the highest impact

on native fauna in Europe, affecting

negatively at least 47 native species.

Through ecological competition it affects

negatively several native carnivores,

namely European mink, polecat and

stoat. The impact of American mink

predation on waterfowl, seabirds, small

mammals, amphibians and fish has also

been documented in various studies in

Europe. In several countries, American

mink is the main reason for the

disappearance of the endangered

European mink, and its presence is

inimical to recovery attempts for the

European mink. American mink can also

transmit diseases.189 American mink may

also launch small-scale trophic cascades,

e.g. affecting plant biodiversity through

187 Ibid., p. 30. 188 Ibid., p. 31. 189 Ibid., p. 6-7.

58

its predation effects on voles. The species

is likely to cause some economic damage

in farms, attacking small animals such as

rabbits or chickens, and in fish farms.

Social harm may come into consideration

among fishermen and also naturalists: as

an effective predator, American mink

may affect fish/crayfish fauna in rivers or

bird fauna in wetlands, for example.

Being an opportunistic predator mink,

like stoat and martens, preys also upon

vermin rodents and in this way may

somewhat reduce the number of these

around farms.190 Mink may also affect

hunting reserves as a predator of rabbits

and partridges.191

(D) It is demonstrated by a risk

assessment carried out pursuant to

Article 5(1) that concerted action at

Union level is required to prevent

their introduction, establishment or

spread

It is clearly demonstrated by the risk

assessment that concerted action at EU

level is required to prevent the

introduction, establishment or spread of

the American mink. The lack of

regulations demanding farms to take

precautionary measures to avoid escapes

in several European countries makes the

likelihood of escapes very high.192 The

costs associated with conservation

/control activity may locally seem quite

high but as only a few projects have been

carried out in the past, the total costs at

190 Ibid., p. 14-15. 191 Ibid., p. 36. 192 Ibid., p. 20-21.

59

the European level remain low.193 Well-

planned conservation activities may

prevent the colonization at a local level.194

Coordinated action at EU level is needed

to prevent the species from spreading to

areas where it is not yet present.195

(E) It is likely that the inclusion on the

Union list will effectively prevent,

minimise or mitigate their adverse

impact

On the basis of the risk assessment it can

be concluded that the inclusion of the

American mink on the Union list would

help to prevent or minimise the adverse

impact of the species. The use of effective

methods for detection and control would

assist in maintaining specific areas free of

the American mink.196 The removal of the

species has already been successful at

local level: several projects have

completely eradicated mink on islands

and also in a few continental areas.197

Funding from the EU would contribute

greatly to prevent and minimise the

adverse impact of the American mink.

193 Ibid., p. 37. 194 Ibid., p. 47. 195 Ibid., p. 31. 196 Ibid., p. 32. 197 Ibid., p. 48.