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What Happened
As you know, the discharge of lead shot in wetlands and within a 100-metre zone (‘wetland shooting’) has been an offence since 16 February 2023. EU Regulation 2021/57, under REACH, applies directly in the 27 EU Member States. It is also applicable in Iceland, Liechtenstein, Norway (EEA countries), and Northern Ireland. Regarding the national implementation of the ban, the definition of ‘wetlands’ calls for several clarifications, along with the meaning of ‘wetland shooting’. The EU Courts—namely, the General Court and the Court of Justice—have addressed some of these problematic aspects through Judgments T-187/21 and C-105/23 P.

What Did the EU Courts Say?
Regarding the scope of the ban, the General Court acknowledged that the term ‘wetlands’ is not ideal, but it is still sufficiently clear and precise to be applied with reasonable certainty. Since Regulation 2021/57 aims to protect waterbirds and their habitats, the scope of the ban should be interpreted in line with those objectives. As a result, temporary ditches and puddles are excluded. These objectives also seem to rule out a fixed interpretation of the 100-metre wetland zone. For example, a body of water at a shooting range or within 100 metres is rarely a habitat for waterbirds—i.e., a place where waterbirds reside, migrate, or nest.

The EU Courts also stated that the ban does not establish a “presumption of guilt,” meaning that persons carrying lead shot in wetlands are not automatically deemed to have discharged such ammunition. Instead, law enforcement officers must demonstrate that carrying lead shot is related to an offence of wetland shooting. However, Regulation 2021/57 explicitly states that the restriction applies to hunters even in the absence of an act of discharge. It remains unclear how law enforcement officers can prove an offence when the carrying of lead shot is a normal part of wetland shooting (as evidenced, for example, by carrying a shotgun). This appears to be presumed, which raises further issues.

If a person is found carrying lead shot in or within 100 metres of wetlands while shooting or preparing to shoot (as evidenced, again, by carrying a shotgun), the shooting in question is presumed to be wetland shooting—unless the person can prove otherwise. However, since all shooting with lead shot in or within 100 metres of wetlands is prohibited, what ‘other type of shooting’ outside the ban could it be? It is also unclear how this aligns with the EU Courts’ rejection of a “presumption of guilt.”

An Outcome?
Ultimately, the EU Courts dismissed all of the applicants’ claims as either inadmissible or unfounded and upheld Regulation 2021/57. However, it is worth noting that if the EU Courts had not ruled that the definition of ‘wetlands’ was sufficiently clear and precise, the entire measure would have been annulled. Furthermore, the prohibition on ‘carrying’ and the reversed burden of proof remain so vague and contradictory—even after the EU Courts’ rulings—that preliminary references are likely to follow. This is especially true in cases where a violation of the ban is classified as a criminal offence, as the presumption of innocence must prevail. The judgments are only available in Polish and French (here).

For further information, please contact seppo.puustinen@face.eu