C-247/85

OPINION OF MR DA CRUZ VILAÇA —CASE 247/85

OPINION OF MR ADVOCATE GENERAL DA CRUZ VILAÇA delivered on 2 December 1986*

COMMISSION v BELGIUM

be adopted by the Member States are to be of species which do not occur naturally in 'at a level which corresponds in particular the wild state (Article 11), the application of to ecological, scientific and cultural implementing measures, which must not requirements, while taking account of lead to deterioration in the present situation economic and recreational requirements'. (Article 13), the adoption by the Member States of stricter protective measures (Article 14), and the establishment of a committee for the adaptation of the directive to We shall see in due course that such a technical and scientific progress (Articles 15 balance is not easy to achieve and that the to 17). legal effect of Article 2 has not been estab- lished beyond doubt. In order to supervise the implementation of the provisions of the directive, Articles 9 (3) Be that as it may, in the light of those and 12 impose an obligation on the Member considerations, the directive provides that, States to forward reports to the having regard to their population level, their Commission. Under Article 9 (3) they are to geographical distribution and the rate at send a report to the Commission each year, which they breed, certain species of birds whilst under Article 12 they are to forward may be hunted (Article 7), subject to certain a report every three years on the implemen- conditions (Article 7 (4)), except by the use tation of national provisions adopted under of certain means, arrangements and the directive, which the Commission is to methods or certain modes of transport take as a basis for its own composite report. (Article 8). Similarly, the directive allows, by way of derogation from the general prohibition, the marketing of certain species 2. The Belgian legislation relating to the where their biological status permits it subject-matter of the directive consists of a (Article 6 (2) (3) and (4)). series of national and regional measures, the most important of which are set out below:

The royal decrees, which apply to all bird Ultimately, the problems raised by the species found in the Benelux countries or implementation of Community directives on within the European territory of the the part of the Member States are Member States (Regional Decree of 20 interwoven at both of the stages at which November 1985) but not listed in Article 1 most of those problems arise, namely the bis of the law on hunting, extend or lay legislative stage (transposition) and the down more detailed provisions concerning administrative stage (implementation). the prohibition of certain practices relating to such birds and their eggs, nests, broods and feathers, subject however to a number of exceptions and derogations. The Minister The question is of course more complex in for Agriculture may also grant certain the case of a State with regional institutions temporary derogations from the provisions which share the power to legislate with the of those royal decrees, under the conditions central authorities and enjoy, in certain and for the purposes laid down therein. areas, broad powers to adopt regulations, and powers of enforcement.

3. As is stated in the Report for the Hearing, the parties' arguments are of two In this case, the Court is faced with the kinds: first, arguments of a general nature problems raised by the application of a involving in particular the interpretation of directive which was adopted on the basis of certain general concepts in the directive; Article 235 of the EEC Treaty in order to secondly, arguments which focus on each serve as the cornerstone of the European of the Commission's various specific Communities' policy and action programme complaints concerning the Belgian legis- on the environment.3 lation.

Those circumstances have no doubt left submitted by Belgium in response to that their mark on the scheme of the directive, reasoned opinion (on 9 July 1984), the which contains both detailed framework Commission retained only some of the provisions and vague expressions which are complaints contained in that document. difficult to define. Since the procedure provided for in Article 169 of the EEC Treaty was duly followed, Owing to that factor, and also to the nature the Belgian Government's contention that of the subject-matter, the specific features of the Commission failed to approach the the Belgian legislation and even the diffi- competent Belgian authorities before insti- culties which arose in establishing certain tuting proceedings is irrelevant. facts during the preliminary inquiry, consideration of the legal problems raised turns at times into a veritable charade. I now turn to each of the specific complaints formulated by the Commission against the Kingdom of Belgium in order to The attainment of the objectives of a determine whether they are well founded. directive of that kind, and in a field of the kind described, inevitably presupposes close I shall answer the general questions raised cooperation between the Commission and by the parties in connection with each of the Member States not only with regard to those complaints. the application of the rules in question but also, at an even earlier stage, when changes are made to national law. 4. The Commission considers that the Belgian legislation is out of line with Directive 79/409 on eight points. In that regard I must refer to the Commission's complaint that it did not First complaint: Article 1 bis of the law on receive at regular intervals from the Belgian hunting Government the reports on the implemen- tation of the directive provided for by Articles 9 (3) and 12 (1); that in itself Article 1 bis (b), (c) and (d) of the Law on constitutes an infringement of the directive hunting of 28 February 1882 classifies as and thus can only give rise to adverse game 13 species which are not listed in consequences as regards consideration of Annex II to the directive and which, by the procedure for implementing the virtue of Article 7, may not therefore be directive and ensuring the achievement of hunted. According to the Commission, the the objectives of Community policy in this fact that those species may be hunted, under area. Article 1 of the Law, only if the annual decree laying down the opening and closing dates of the hunting season so provides does not justify the absence of a general On the other hand, there is no evidence of prohibition on hunting the species in any improper conduct on the part of the question. Commission during the procedure followed before the action was brought. The reasoned opinion delivered on 20 February I also consider that achievement of the 1985 by the Commission was properly objective pursued by the directive, namely preceded, a year earlier (on 22 February conservation of the species in question by 1984), by notice to the Belgian Government protecting them from hunters, is not effec- that it had failed to fulfil its obligations, tively guaranteed by the relevant provision and, in the light of the observations of Belgian law, notwithstanding the fact that

it does not grant express authorization to to in Article 1 bis may be hunted as soon as hunt but — in formal terms — merely treats the competent authorities say so. those species as game and classifies them in various groups. In the terms in which it is drafted, the Belgian legislation confers on the adminis- In the first place, it must be pointed out that trative authorities a discretion which enables Article 5 of the directive contains a general them to issue decrees which are in rule which imposes on all the Member conformity with the law on hunting but not States an obligation to take the necessary with the Community directive. protective measures including, in particular, measures prohibiting the deliberate killing or capture by any method of any of the That has actually happened in practice. The species of birds referred to in Article 1. Commission refers to several annual decrees Article 7, as is clear from the wording of which were adopted in various regions by Article 5, constitutes an exception to that the competent authorities and which effec- general rule by laying down that only the tively infringed the prohibition in the species listed in Annex II may be hunted in directive by authorizing the hunting of certain circumstances. blackbirds, jackdaws and magpies — species which are not listed in Annex II to the directive — even though the conditions for The Belgian legislation not only fails to granting the derogations provided for in impose an express prohibition on hunting, Article 9 were not fulfilled. but it is also drafted in terms that are, to say the least, equivocal in so far as it classifies as 'game' certain species which, under the That would appear to indicate that directive, may not be hunted. compliance with the provisions of the directive would be ensured only if the law on hunting excluded the possibility of Admittedly, it is for the administrative auth- enacting implementing decrees authorizing orities to decide whether or not to authorize the hunting of the species not included in each year the hunting of those species, since Annex II., it does not necessarily follow from Article 1 bis that hunting of all the species referred to in that article will be permitted. The Court has already held on several occasions that the maintenance by a Member State of legislation which is It must quite simply be borne in mind — in contrary to Community law constitues a conformity with the interpretation put failure by that State to fulfil its obligations forward on this point by the Commission at inasmuch as it gives rise to an ambiguous the hearing — that in substance Article 1 bis state of affairs and a state of uncertainty as defines the scope of the law on hunting by to the rights of the persons affected by it, indicating the species which may come even where the competent authorities have within the scope of its provisions. given directions waiving the application of the national law.4

Even though the two situations are not vitiated by the Belgian Government's breach wholly comparable, I believe that the same of its obligations. conclusion must be drawn where there is a state of uncertainty as to whether the obli- gations imposed by a Community directive In addition, the Belgian system of issuing on the administrative authorities of a annual decrees makes it difficult, and at Member State and, ultimately, on indi- times even impossible as the Commission viduals have been fulfilled and where that points out, to monitor the proper transpo- uncertainty is the result not so much of a sition of the provisions of the directive into basic contradiction in the wording of the national law. provisions concerned but of omissions and methods of formulation which broaden the scope of the national legislation unduly. Frequently the annual decrees are published

directive. That is a sufficient reason for weight. In reality, the Commission's charging the Kingdom of Belgium — which statement can only mean that the dero- is responsible for the acts and omissions of gations may be relied upon for the purposes all its competent constitutional bodies and of the annual decrees laying down the date institutions6 — with a failure to fulfil its for the opening of the hunting season, obligations which can in fact be traced back provided of course that those decrees fulfil to the provisions of Articles 1 and 1 bis of the conditions laid down in Article 9.

77/69 Commission v Belgium [1970] ECR 237. Community law.

In conclusion, I consider that Article 1 bis to protect the species found on its territory, of the Belgian law on hunting, even if read there is really no reason to amend the list in conjunction with Article 1 thereof, is not which it has adopted. in conformity with the provisions of Article 7 of Directive 79/409 and Annex II thereto. In my view, however, the Belgian Government's argument is illogical. Second complaint: Article 1 of the Royal Decrees of 20 July 1972 and 9 September If the directive is to be properly 1981 implemented, Belgian law must extend its protection to 'all species of naturally occurring birds in the wild state in the Article 1 of the Royal Decree of 20 July European Member States to which the 1972, which is applicable to the Brussels and Treaty applies', as required by Article 1. "Walloon regions, and Article 1 of the Royal Those are the species covered by the Decree of 9 September 1981, which is directive and any legal definition which is applicable to the Flemish region, afford more restrictive in scope does not provide protection only to birds living in the wild in adequate protection. The Member States the Benelux countries, whereas the directive have at their disposal practical and legal extends its protection to all species of means for achieving the objectives of the naturally occurring birds in the wild state in directive even in relation to birds not usually the European territory of the Member found within their territory, since it is clear States. that the directive prohibits not only the hunting but also the transport and marketing of such birds. However, since the Regional Executive of the Flemish region has published a decree7 amending Article 1 of the Royal Decree of However, a list does not provide an abso- 9 September 1981 in order to bring it lutely infallible guarantee as to the number wholly into line with the directive, the of species recorded nor can it keep up with Commission stated at the hearing that the changes which occur in bird populations although that decree was adopted only after and in their migration routes. these proceedings were instituted, it was limiting its complaint to Article 1 of the Royal Decree of 1972. For that reason, national legislation must (subject to the exceptions lawfully granted) formulate in precise and sufficiently broad The Belgian authorities use as a reference terms the scope of the protection work for determining which species are guaranteed, so as to incorporate in full the protected the Avifaune de Belgique, which machinery for the protection of birds mentions almost all the species of birds to provided for in the directive. which the directive applies. In view of the fact that the Commission has not produced a complete list of bird species found in the Moreover, the Flemish region seems to have Member States (Belgium would be prepared recognized the soundness of that argument to take such a list into account if one were and has amended Article 1 of the Royal produced) the Belgian Government takes Decree of 9 September 1981 by a Decree of the view that, since its only responsibility is 20 November 1985, thereby bringing the protection of wild birds in that region 7 — Decree of 20 November 1985 Moniteur belge of 31. 12. wholly into line with the directive, as we 1985. have seen.

That being so, it is clear that Article 3 of the In my view, the power to derogate royal decrees in question does not fulfil the contained in Article 9 is of an exceptional requirements laid down in Article 9 of the nature and a restrictive interpretation must directive for a derogation to be allowed. be adopted regarding recourse to it. That is the only way to prevent the system of protection established by the directive from being nullified. That is not to say that in practice circum- stances will never arise in which the building of nests in chimneys or pipes or on Article 9 therefore specifies the purposes for telephone cables, for instance, may pose a which derogations may be adopted and, in threat to public safety. Similarly, there may harmony with the principle of propor- be individual cases in which public health is tionality, makes the absence of any other endangered by the presence of nests in satisfactory solution a precondition for their buildings used by the food industry. Article adoption, with the result that the dero- 9 of the directive provides for the possibility gations are limited to what is strictly necessary having regard to their purpose. 8 — Emphasis added.

OPINION OF MR DA CRUZ VILAÇA —CASE 247/85

of derogations only in specific situations of We have already seen that the exceptional that kind and under properly supervised nature of the derogations permitted by conditions. Article 9 of the directive means that they must be couched in precise, clear and However, the permissive nature of Article 3 restrictive terms and must set out all the of each of the contested decrees, resulting factors which, by virtue of Article 9 (2), from the general scope thereof, clearly goes make it possible to establish that the beyond those specific instances, since that conditions for the exception and the scope provision may apply to innumerable situ- thereof are fulfilled, so as to ensure that the ations in which there is no threat to public derogations do not go beyond what is health or public safety. strictly necessary.

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That being so, how is the compatibility of Here too the question is essentially whether the contested provision of the aforesaid the terms in which the Belgian legislation is royal decrees with the directive, and in couched meet the conditions for the particular with the provision for exception, application of any of the derogations contained in Article 9 thereof, to be provided for by Article 9 of the directive, appraised? and in particular by Article 9 (1) (c) which lays down that the Member States may derogate from Articles 5 to 8 'where there is I believe this question must be answered in no other satisfactory solution . . . [in order] the light of the general protective purposes to permit, under strictly supervised of the directive.

OPINION OF MR DA CRUZ VILAÇA —CASE 247/85

fixed. The provision concerned must be the decision of the relevant ministers adopted Contrary to what the Belgian Government pursuant to Article 4 of the Ministerial seems to suggest in its reply, that expression Decree of 14 September 1981 and to Article does not, in my view, relate to the number 5 of the Regional Decree of 28 July 1982. of bird species which may be captured. That is clear from the wording of the final part of Article 9 (1) (c). It is the number of The Commission does not challenge the specimens which may be captured that must figures given but takes the view that they be determined, as that is the only way of are excessive, having regard to the actual ensuring compliance with that purpose of purpose of capturing the birds which is the directive. above all — as is clear in particular from the Ministerial Decree of 14 September 19819

1985. In the Walloon region, the number of removing the birds from their natural envi- species was reduced from 28 to 16 on one ronment, as is clear from experiments of the lists. However, the Belgian carried out in other Member States where Government adds that, in the various for decades there has been no right what- regions, limits have also been set to the soever to capture birds. number of specimens of each species which may be captured. In the Flemish region, the number is limited to approximately 25 000 Even if in certain cases it were necessary to birds and in the Walloon region to approxi- capture birds living in the wild in order to mately 50 000 birds (12 marking rings for satisfy the requirements of bird breeders, the each of the bird catchers, of whom there are Commission considers that a small number about 4 000), whilst in the Brussels region of birds, in any event far fewer than the no more than about 100 birds may be captured; they are caught for scientific 9 — Moniteur beige oí 13. 11. 1981.

The Commission itself acknowledged at the For that reason, the Commission is right to hearing that it had been 'somewhat vague' consider that this state of affairs could lead in its references to the allegedly excessive to very serious consequences as regards the number of birds. survival of certain species. It is quite conceivable that certain bird species might be captured in excessively large numbers, The Commission explained that, in reaching within the overall quota of birds whose its conclusion, it adopted a criterion based capture is authorized, whilst other species on the relationship between the authorized might be left practically untouched. number of birds that may be captured and the mortality rate of the bird species in question in each region, also having regard In other words, the provisions and adminis- to the number of eggs of each species. trative practices in force in Belgium fail to ensure that the protective purpose of Directive 79/409 is achieved in that regard. However, although it stated that a maximum proportion of 2.5% would be appropriate, the Commission has not Against that, it seems to me that the Belgian dispelled the uncertainty surrounding the Government cannot rely on Article 2 of the meaning of that figure. Not only does not it directive in referring to cultural and recre- not give sufficient reasons for selecting that ational requirements. The fundamental rate whilst discarding all the other possi- purpose of Article 2 is to define the general bilities, but it also fails to indicate the thinking behind the directive, essentially by precise figures which should result from its providing a basis for the various provisions application. On the other hand, it concedes of the directive, in particular Article 9 and that it is impossible to state with certainty the derogations provided for therein. That whether the number of birds which may be provision clearly reflects the concern captured constitutes a threat to the survival inherent in the ecological requirements of a given bird species, having regard to the (second and third indents of Article 9 (1) question of the natural reproduction of the (a), Article 9 (1) (b) and Article 9 (2)), in species. the scientific and cultural requirements (Article 9 (1) (b) and (c)), in the economic requirements (third indent of Article 9 (1) However, there is a factor — albeit one of a (a) and Article 9 (1) (b)) and in the recre- residual nature — which leads me to the ational requirements (Article 9 (1) (c)). conclusion that the Commission is right in Accordingly, Article 2 in my view essentially its complaint that the Belgian legislation contains guidance which the legislature does not comply with all the conditions for imposed upon itself when adopting the the application of the derogation in Article directive.

I do not by any means rule out the possi- from the keeping of birds) only to bility that Article 2 may also impose obli- exchange, which is a concept distinct from gations upon the Member States with regard those referred to in Article 5. to the transposition of the directive into ' national law. Exchange between bird keepers (between breeders, as the Commission states) is In any case, however, reliance upon the permitted, and therefore there is no general terms of Article 2 is no substitute apparent reason for objecting to the for compliance with the conditions laid exchange of birds when it is lawful to keep down in the other provisions of the them pursuant to one of the derogations directive, such as Article 9. In any event, allowed under Article 9 of the directive. if such an approach is to be Exchange is unlawful, in my view, only acceptable — particularly when the object is where the keeping of birds does not fall to justify derogations from general within the terms of the derogation provided prohibitions — it must be based on appro- for in the directive, with the result that this priate grounds, which is not the case here. complaint cannot be separated from the first complaint.

directive. Belgian Government has adduced in its rejoinder in these proceedings sufficient evidence to demonstrate that the allegation That argument, however, it seems to me, is is unfounded. not supported by adequate grounds. Article 6 of the royal decrees does not (as the Commission acknowledges) permit market- Thus, in the Flemish region, Article 5 of the ing as such, that is to say the release on to Ministerial Decree of 14 September 1981 9 the market or the offering for sale of provides that persons who capture birds captured birds, within the meaning of must satisfy seven conditions.

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őrized from those indicated by the Walloon regions, since one of the recognized groups. Article 6 authorizes the conditions set out in Article 9 (1) (c) of the capture of birds only during a limited period directive (the capture and keeping of birds and subject to certain conditions. 'in small numbers') is not fulfilled.

I am therefore of the opinion that the fifth complaint is unequivocally well founded However, the Commission's reference to only as regards the failure to divide Annexes 2 and 3 to the royal decrees must according to species the numbers of birds be properly understood. Article 7 (1) of the which may be hunted in the Flemish and Decree of 20 July 1972 refers only to Annex 2 (which is inevitable in view of the fact that 10 — Moniteur belge oí 18. 9. 1982. there was no Annex 3) and, as we know,

OPINION OF MR DA CRUZ VILAÇA —CASE 247/85

In the Commission's view, that is prohibited However, Article 6 (4) of the 1981 decree by Article 5 (e) and Article 6 (1) of the and Article 7 (2) of the 1972 decree do not, directive. in my view, refer solely to birds reared in captivity whilst excluding those which fall within the scope of the directive. Once again, this is a situation in which the national provisions are 'perilously close' to the borderline between what is lawful and That is confirmed by the fact that the said what is unlawful under the Community provisions derogate from Articles 3 and 5 of directive. the decrees, and the latter, for their part, refer to the birds mentioned in Article 1, that is to say those 'found in the wild in the The Belgian Government contends, in reply Benelux countries' (or 'in the European to the Commission's claim, that birds whose territory of the Member States', according colour differs visibly from the normal colour to Article 1 of the Decree of 9 September of birds living in the wild are either the 1981 as amended by the Decree of 20 result of long-term breeding, or the result of November 1985, so far as concerns the artificial cross-breeding, or else they are Flemish region).

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The Belgian Government complains of the reliance on a factor relating to a specific difficulties in carrying out checks, locality does not in itself constitute a valid particularly with regard to mutants, cross- reason for a derogation unless it is breeds and hybrids, in so far as it is at times combined with one of the other grounds impossible to classify birds whose colouring referred to in Article 9 (1). clearly departs from the norm in one or other of the known species of birds living in There is little to be said regarding this the wild. complaint.

Article 9. Once more, it is appropriate to refer in this connection to the previous decisions of the In the light of the foregoing considerations Court, which again appear to me to be in this case too I am of the opinion that the relevant and according to which it is provisions complained of are not wholly essential that each Member State should compatible with those of Directive 79/409. implement directives in a way which fully meets the requirements of clarity and certainty in legal situations which directives Eighth complaint: Article 9 of the Royal pursue." The transposition of the directive Decree of 20 July 1972 11 — Sec the judgment of 6 May 1980 in Case 102/79 Article 9 of the Royal Decree of 20 July Commission v Bllgium [1980] ECR 1473 and of 30 January 1985 in Case 143/83 Commission v Denmark [1985] ECR 1972, which is applicable to the Walloon 427.

into national law must not therefore be left sufficient to expunge all the defects from tó a national or regional administrative the Belgian legislation. body whose discretionary power is not circumscribed by the applicable statutory provision in such a manner as to ensure full In the first place, the 1982 decree applies compliance with the conditions laid down only to the Walloon region and not to the by the directive. Brussels region. Secondly, the Commission's complaint concerns the wording of Article 9 of the Decree of 20 July 1972 and its compatibility with Article 9 of the directive, In its reply to the Commission's notice to not the interpretation of the concept of the effect that it had failed to fulfil its obli- small numbers. Moreover, the wording of gations, the Belgian Government relies, in Article 9 of the 1972 decree leaves the defi- support of its position, on the fact that the nition of other concepts, which are not derogations granted refer to what it regards clarified by the 1982 decree, unresolved. as small numbers and to species which are potentially harmful, and on the fact that the Walloon Regional Executive's Decree of 28 Specifically, the reference to the mere July 1982 repealing the Ministerial Decree prevention of damage is less restrictive than of 17 September 1973 expressly refers, in its the reference to serious damage in the third preamble, to Directive 79/409, and in indent of Article 9 (1) (c) of the directive; particular to Article 9 (1) (c) thereof. moreover, as a factor relating to a specific locality does not constitute a separate ground for a derogation under that The Belgian Government did not reiterate provision, a factor of that kind can those arguments during the written constitute a basis for a derogation from the procedure. general rules only by reference to or in conjunction with the various grounds set out in that provision. Although the Decree of 28 July 1982 strictly limits the scope of Article 9 of the Decree of Accordingly, I am of the opinion that, as 20 July 1972 (with particular reference to regards the Brussels and Walloon regions, Article 6 of the latter decree), I do not Belgium has not adequately fulfilled its obli- consider that reliance on that decree or on gation under Article 18 of the directive to the other circumstances referred to is amend its legislation.