The lead shot over wetlands proposal is unworkable

The European Commission’s plans are a flagrant breach of fundamental rights and basic freedoms. MEPs therefore have a simple decision: Reject the proposal and send it back to the REACH Committee, argues the European Shooting Sports Forum's Marta Gómez
Marta Gomez- ESSF

By Marta Gómez

Marta Gómez is a member of the European Shooting Sports Forum (ESSF)

22 Sep 2020

What is the European Commission’s proposal about and why is the definition of wetlands so problematic?

The proposal is about phasing out lead shot for hunting with shotguns over wetlands. There are few, if any, people against efforts to prevent water birds from accidentally eating lead shot pellets.

However, the European Commission has confirmed that ‘wetlands’ are categorised as any possible area of water one can think of regardless of size, including a temporary wet path or puddle after a shower of rain. This may seem remarkable, but the draft proposal makes use of the broadest definition of wetlands possible, provided by the international Ramsar Convention on Wetlands.

However, this definition is designed to be used by governments in conjunction with a detailed mapping exercise, except mapping of the features described above is not possible. Consequently, this results in the most disproportionate definition of wetlands possible, which will result in widespread legal uncertainty.

What ‘wetland’ areas are actually covered by the proposal?

Unfortunately, this is difficult to know because not only does the proposed definition change depending on weather conditions, it also covers all peatlands, which includes huge areas of land without visible water especially in Nordic and Baltic countries, the UK, Poland and Ireland.

In addition, for hunters and enforcement officers, it’s often impossible to accurately identify peatland habitats in the field. Consequently, the use of this definition goes directly against the principle of legal certainty, which requires that the effects of a law shall be predictable and foreseeable.

The proposal also includes fixed buffer zones; what exactly is a buffer zone?

Buffer zones prohibit the use and carrying of lead shot in or within 100 metres of wetlands. However, the European Chemical Agency (ECHA) said that the plans to create fixed “buffer zones” were not risk, or socio-economically, assessed during the process.

This casts doubt on whether the proposal is even appropriate for enhancing the protection of waterfowl.

"The draft restriction reverses the traditional due process rights meaning it would be for the hunter/shooter to demonstrate that the form of hunting or sport shooting is legal and not for the prosecutor that the form is illegal"

What impact could the proposal potentially have on Olympic shooting and World Cup events?

It would be practically impossible for World Cup or Olympic clay shooting events to be held in any EEA country. One shower of rain would mean that using lead shot is not allowed, and these are lead shot-only events.

Even without rain, over 600 shooting ranges where competitions and training take place have permanent water features present.

Despite such major consequences for our favourite sporting events, the impact on shooting ranges was not subject to any socio-economic assessment during the opinion and decision-making process.

What other impact could it have?

The Police often use shotguns, but if there is any water on the ground, including in urban areas, police officers will be breaking the law if they use lead shot.

Many water features in urban areas such as fountains and urban ponds would be included, as well as any urban areas within 100 metres of the sea.

Criminal cases may end up being dismissed if the police are deemed to be breaking the law in the act. Currently, there is no exemption for the police in the draft proposal.

What impact will this have on the legal rights of Europe’s estimated 10 million hunters and sport shooters?

Anyone in possession of lead shot within 100 metres of water will be presumed to be guilty. Hence, the draft restriction reverses the traditional due process rights meaning it would be for the hunter/shooter to demonstrate that the form of hunting or sport shooting is legal and not for the prosecutor that the form is illegal.

In democracies like ours, the presumption of innocence is fundamental, and it implies that the burden of proof cannot easily be shifted from the prosecution to the defence. It is for the prosecution to prove that a citizen is guilty beyond reasonable doubt.

"Few are opposed to phasing out lead shot for hunting over wetlands, but the current proposal creates too many unresolvable problems, is in breach of fundamental human rights and won’t work in practice"

Considering that the definition of wetlands depends upon unpredictable weather conditions, it implies that hunters could be considered guilty without even realising they are crossing a wetland carrying lead shot. This proposal is in flagrant breach of international and European human rights’ law, including the European Convention on Human Rights and the EU Charter of Fundamental Rights.

We expect EU Member States to encounter several problems under criminal and administrative law.

What does all this mean for regional, national and European courts?

In short, it would result in total confusion given the amount of legal uncertainty for so many EU citizens.

In a nutshell, there are five main problems: the scope of the restriction (i.e. the definition of ‘wetland’); the presumption of innocence being reversed; the peculiar position of consumers under REACH; the placing on the market of lead shot and the breach of the principles of legal certainty and proportionality.

This is the first time that the EU will directly regulate Europe’s 10 million hunters and sport shooters in Europe with a law that is in breach of the principles of legal certainty, the presumption of innocence and proportionality. The proposal goes far beyond the EU’s competence.

If adopted, it would create major problems related to regulatory compliance and law enforcement at national level. We believe that MEPs have a simple decision: Reject the proposal and put it back to the REACH Committee for further work.

Few are opposed to phasing out lead shot for hunting over wetlands, but the current proposal creates too many unresolvable problems, is in breach of fundamental human rights and won’t work in practice.

About the ESSF

The European Shooting Sports Forum (ESSF) is an informal platform where representatives of international bodies active at European level in the fields of sports shooting, hunting, firearms collecting, trade and industry maintain an open dialogue to discuss issues of common interest, in particular the environmental, legal, political and socio-economic aspects of such activities.

The ESSF is composed of the European Association of the Civil Commerce of Weapons (AECAC), the Association of European Sporting Ammunition Manufacturers (AFEMS), the European Shooting Sports Council (ESSC), the Association of European Manufacturers of Sporting Firearms (ESFAM), the Federation of Associations for Hunting and Conservation of the EU (FACE), the Foundation for European Societies of Arms Collectors (FESAC), and the Institut Européen des Armes de Chasse et de Sport (IEACS).

The sectors employ more than 600,000 people in Europe and the annual turnover is around € 40 billion, when including the revenues generated by hunting and shooting activities, as a whole. All in all, this includes 14,000 retailers, 300,000 collectors and over 10 million hunters and sport shooters in Europe.

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