C-252/85
ECLI:EU:C:1988:55
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OPINION OF MR DA CRUZ VILAÇA — CASE 252/85
OPINION OF MR ADVOCATE GENERAL DA CRUZ VILAÇA delivered on 4 February 1988 *
remedied and there is still an interest in Mr President, obtaining a judgment of the Court to that Members of the Court, effect:2 the Commission is presumed to have an interest in bringing an action whenever a Member State does not fulfil its 1. This is the fifth case in which the Court obligations within the prescribed period.3 is asked to consider whether the legislation of a Member State complies with Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds. ' 6. Under those circumstances — and with the exception of the complaints in respect of 2. On this occasion, it is the legislation of which the Commission has discontinued its the French Republic which the Commission action — the examination of the conformity claims is not in conformity with the of domestic law with the directive must take directive. into account the legislation in force at the time when the reasoned opinion was delivered and at the date when the 3. Curiously, this was the first of the application was lodged, once the scope of actions instituted by the Commission for the dispute has been defined.4 failure to comply with Directive 79/409; the hearing, which had been fixed for July 1986, was postponed until December 1987 at the joint request of the parties, since the French authorities were expected to adopt the provisions needed to comply with the 7. Of the six complaints made in the directive. Various amendments to the application, the Commission has recognized French legislation were in fact subsequently that the one concerning the hunting of introduced. turtle doves in the Médoc region (fifth complaint) has become devoid of purpose, since a judgment of the French conseil 4. The Commission did not, however, d'état of December 1984 annulled the discontinue the action, although it did Ministerial Decree authorizing such hunting acknowledge at the hearing that some of the on the ground that it was contrary to the complaints set out in the application had directive. As a result, permits for the become devoid of purpose. 2 — Judgments of 7 February 1973 in Case 39/72 Commission v Italian Republic [1973] ECR 101; of 20 February 1986 in Case 309/84 Commission v Italian Republic [1986] ECR 5. The Court has consistently held that, 599; of 5 June 1986 in Case 103/84 Commission v Italian Republic [1986] ECR 1759; and of 17 June 1987 in Case where a directive is implemented late, that is 154/85 Commission v Italian Republic [1987] ECR 2717. to say after the end of the period fixed in 3 — Judgment of 19 December 1961 in Case 7/61 Commission v the reasoned opinion, the breach is not Italy [1961] ECR 317. 4 — Judgment of 27 May 1981 in Joined Cases 142 and 143/80 Amministrazione delle finanze dello Stato v Essevi and * Translated from the Portuguese. Salengo [1981) ECR 1413; judgment of 13 October 1987 in Case 236/85 Commission v Hie Netherlands [1987] ECR 1 — Official Journal 1979, L 103, p. 1. 3989, at paragraph 28.
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hunting of those birds could no longer be consultations with the Commission, as granted. required by Article 9 (3) and (4) of the directive.
8. The Commission has also recognized 11. I shall therefore now consider the that the complaint concerning the list of remaining complaints, retaining the birds which may be hunted (fourth numbering employed in the application. complaint) is now devoid of purpose, since the Ministerial Decree of 12 June 1979 was repealed and replaced by Ministerial Decree of 26 June 1987, which contains a list of First complaint: Protection of nests and species of birds which may be hunted, eggs drawn up in accordance with Article 7 and Annex II to the directive. The text of the latter decree was submitted to the Court by the representative of the French 12. Article 5 (b) and (c) of the directive Government at the hearing. provide for the protection of the nests and eggs of all the species of birds referred to in Article 1.
9. The Commission's original complaint concerned the six species referred to in 13. (a) However, the French legislation — the Ministerial Decree of 1979 whose namely Articles 372 (10) and 374 (4) of the destruction was authorized because they code rural — provides, so far as game birds were were capable of damaging crops — are concerned, only for the protection of rooks, crows, starlings, jays, magpies and eggs and nests during the close season. jackdaws. In its defence, the French According to the Commission it is therefore Government maintained that the dero- not in conformity with the directive, which gations from the directive in respect of such requires the protection in question to be species had been communicated to the guaranteed throughout the year. Commission by letter of 26 Augut 1981 and were justified by the third indent of Article 9 (1) (a) of the directive. 14. France contends that that is a purely formal objection, since birds do not nest during the hunting season; the result 10. Subsequently, the species in question intended by the directive is therefore were removed from the list of birds which entirely achieved by the French legislation. may be hunted by Decree of 26 June 1987, In support of its view the defendant states and the question whether or not derogations (in the rejoinder) that the ministerial decrees from the directive will henceforth be which fix the dates on which the hunting permissible (on the basis of the third indent season is to open and close result in the of Article 9 ( 1 ) (a)) will, as far as such birds season 'traditionalk/ opening no earlier are concerned, depend on the specific scope than the first Sunday in September and of the derogations requested. It is not, closing no later than 28 February. This however, logical to consider whether they ensures that the period in which restrictions are permissible in the framework of this apply coincides with the nesting and repro- action, since they must first be the subject of duction season.
OPINION OF MR DA CRUZ VILAÇA — CASE 252/85
15. However, the French legislation does the hunting season never opens during any not appear fully to ensure the attainment of period in which any of the species of birds is the objectives laid down in Article 5 (b) and reproducing, the French legislation does not (c) of the directive. fully implement the provisions of Article 5 (b) and (c) of the directive.
16. In the first place, as the Commission has pointed out, the suspension of the protection of nests during the hunting 19. (b) As regards the other species of season reflects a failure to recognize that non-domesticated birds to which the Decree such protection is necessary even at times of 17 April 1981 refers, the Commission other than the reproduction period. There considers that, although the protection are in fact birds (in particular among the which that decree provides is not limited in migratory species) which re-use nests built time, it does not cover all species of in previous years. By not protecting nests naturally occurring birds in the wild state in throughout the year, the French legislation the European territory of the Member therefore fails to comply with the States, as is required by Article 1 of the requirements laid down in Article 5 (b) of directive, to which Article 5 (1) refers. the directive.
17. Secondly, the Ministerial Decrees that 20. As examples of species not covered by fix the dates on which the hunting season is the prohibition on the destruction of nests to open and close for the various regions and eggs, the Commission mentions those and species of bird do not fully guarantee referred to in Articles 2 and 3 of the that the hunting season and the nesting aforesaid decree. season cannot overlap. Moreover, the French Government's assertion in that connection gives no guarantee that the hunting season will always be between the first Sunday in September and 28 February; 21. The Commission is incorrect so far as it merely states that that is 'traditionally' the Article 3 is concerned, since it was repealed case. Thus the French Government relies on by Article 5 of the Decree of 20 December a 'tradition', which has no binding force 1983. and does not guarantee that the hunting season can never coincide with the nesting season. An example of this is the case of the hunting of turtle-doves in the Gironde which, until the judgment of the conseil 22. Article 2 refers to the herring gull {Urus d'état of 7 December 1984, was permitted in argentatus) and the black-headed gull (lams May by the Decree of 20 April 1982, that is ridibundus), in respect of which a dero- to say during the reproduction period of gation was requested by letter of 28 July (or those birds. 26 August?) 1981, pursuant to Article 9 (1) (a) of the directive, in the light of the threat which the proliferation of such birds posed to mussel-farming, to certain species of 18. Thus, by not protecting nests and eggs sea-birds and to air safety, reasons which throughout the year and not ensuring that are still valid today.
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23. The French Government stated at the birds in the wild state in the European hearing that such derogations are granted territory of the Member States. on a case-by-case basis by the Minister for the Environment and apply to specific limited numbers of nests and eggs. Under those circumstances, the exceptional and 28. However, the protection under Article 3 limited nature of the derogations and the of Law N o 76-629 of 10 July 1976 is limited reasons for which they are granted in to cases where the need for it is justified by principle enables them to be regarding as a particular scientific interest or by a falling within the scope of Article 9 (1) (a) concern to preserve the national biological of the directive. heritage. In the Commission's opinion, the concept of damage to the 'national bio- logical heritage' is too restrictive to be compatible with the directive, since the 24. The fact remains, however, that the latter covers what could be described as the protection of nests and eggs provided for in 'European biological heritage'. Contrary to the Decree of 17 April 1981 does not cover the requirements of the directive, the French all species of naturally occurring birds in the legislation does not protect, in particular, wild state in the European territory of the migratory species of other Member States Member States. The list submitted by the which may at any given moment be found Commission on 31 May 1986 at the request within French territory. of the Court includes various species of birds which, although not expressly excluded (like those mentioned in Articles 2 and 3) from the protection provided by the 29. Although the Decree of 17 April 1981, Decree of 17 April 1981, nevertheless do adopted pursuant to the law in question, not appear in the list contained in Article 1 extends the concept of national biological thereof. heritage to numerous species which do not nest in France and thus embraces migratory species, the fact remains that protection is not afforded to all the species covered by 25. I shall examine that argument in greater the directive, and therefore to that extent detail in connection with the following does not comply with the directive. complaint.
26. In view of my conclusion concerning 30. In fact, as has been stated by the that complaint, together with the consider- Commission, it would be difficult for the ations which I have just put forward, the system adopted by the French legislation, second limb of the first complaint may also whereby the protected species are expressly be regarded as well founded. listed, to include all the species referred to by Article 1 of the directive. Such a system inevitably runs the risk of being too restrictive. As I stated in my Opinion in Second complaint: Scope of the protection Case 247/85 (ECR 3028), a list does not provide 'an absolutely infallible guarantee as to the number of species recorded, nor can it keep up with the changes which occur in 27. As I have already stated, the directive bird populations and in their migration protects all species of naturally occurring routes'.
OPINION OF MR DA CRUZ VILAÇA — CASE 252/85
31. This seems to be shown by the list of Decree of 17 April 1981—preventing in species produced by the Commission, to particular the capture and removal of the which I referred in connection with the birds listed therein and of their eggs, and previous complaint. At the hearing, the their transport, use, sale or purchase — agent for the French Government stated results in a prohibition of the keeping of the that some of the species listed do not live in species protected thereby. France or migrate to France and that the remainder are covered in France by the rules for the protection of wildlife. However, the Court has already held that 35. Nevertheless, once again the question the protection afforded by the directive also remains whether the protection afforded by covers species of naturally occurring birds in the decree is wide enough. Since it does not the wild state in the European territory of protect all of the species covered by the another Member State which are not directive, the decree cannot comply with it: naturally or usually to be found in the to enable it to do so, the prohibition of the territory of the Member State in question keeping of birds would have to be extended but are transported there, held or marketed to those species which, though not covered there, whether alive or dead. 5 The French by the decree, are protected by the directive legislation does not extend to such birds the (see the analysis of the second complaint). protection provided by the directive, and Moreover, the French Government appears therefore the second complaint must be by implication to acknowledge the defi- regarded as well founded. ciency in its defence.
Third complaint: The keeping of birds Sixth complaint: The use of limes and nets for capture 32. Law N o 76-629 does not expressly prohibit the keeping of species of birds the hunting and capture of which is prohibited, and thus, according to the Commission, it is 36. For the reasons which I set out at the not in conformity with Article 5 (e) of the beginning of my Opinion, I shall not, in directive. The law merely requires authori- examining this complaint, deal with the zation to be obtained for the keeping of Ministerial Decrees of 1 September 1987 by non-domesticated species of animals (Article which the French Government sought to 5) and lays down the conditions to be regularize the traditional methods of applied thereto in Articles 6 and 10. hunting. I shall thus confine myself to examining the conformity with the directive of the French legislation referred to in the 33. The French Government contends, application, namely the Ministerial Decree however, that the domestic legislation of 27 July 1982 and the Ministerial Decrees enables the objectives of the directive to be of 7 September and 15 October 1982. attained.
34. It is true that the combined effect of the 37. Those decrees authorize the use of prohibitions contained in Article 1 of the limes for the capture of thrushes and the use of nets for the capture of skylarks. Such 5 — Judgment of 8 July 1987 in Case 247/85 Commiuion v methods of capture are expressly prohibited Kingdom of Belgium [1987] ECR 3029, at paragraph 22. by Article 8 and by part (a) of Annex IV to
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the directive on the ground that such 42. It seems to me that the French methods are, by their nature, non-selective. Government has adequately explained (chiefly in its defence) that the conditions laid down by the legislation in question are sufficiently strict and provide sufficient 38. By letter of 25 May 1983, France supervision of the use of the hunting notified the Commission that it was dero- methods concerned in this complaint. gating from Articles 7 and 8 of the directive in respect of such methods of capture, as permitted by Article 9 (1) (c) of the directive which, in its view, covered the survival of traditional methods of hunting. 43. None the less, if the derogations are to be permitted, the methods of capture used must also be selective. The use of limes and of nets is expressly prohibited in Article 8
39. It must first be said in response to that and part (a) of Annex IV, precisely because argument that the ground relied upon can it is non-selective, in view of the risks that only be covered by Article 9 (1) (c) if it can other species of birds will be captured. The be considered as constituting a 'judicious fact that the French legislation requires use' of the birds in question. 6 In that birds belonging to other species to be set regard, the relevant French legislation seems free does not alter the nature of the to limit the capture of birds to those which operation carried out by the use of such are intended to be used as decoys; the methods, and, as the Commission has French Government also invoked social pointed out, the fact remains that such a reasons connected with the advanced age of method is likely to injure, mutilate or kill the traditional practitioners of such hunting birds of any species. methods, claiming that the preservation of such methods would also contribute to discouraging people from leaving the countryside.
44. Furthermore, not only must the capture be selective but the birds must also be captured in small numbers. France seems to 40. However, in order to ensure that consider that this condition is satisfied if the today's ecological requirements are percentage of birds captured is small in complied with, the practice of such tradi- relation to the total number of such birds. tional methods must, if in fact it is covered However, notwithstanding the estimates by Article 9 (1) (c), satisfy the conditions provided by the French Government, the expressly laid down in that provision. French legislation in question is not capable of guaranteeing that in the future there will not be intensive hunting of such birds (even if the fact is taken into account that they
41. In particular, the activity in question may be used only as decoys) and that the must be carried out under strictly supervised percentages recorded up to now will not conditions and on a selective basis and must increase substantially. In fact the decrees in be restricted to small numbers of birds. question do not contain any restriction on the number of birds which may be captured 6 — It should be pointed out, however, that the Court has already stated that reasons of local interest are not included by each user of the methods in question, so in any of the grounds for derogation laid down in Article that there is no guarantee that the total 9 (1) of the directive (judgment of 8 July 1987 Commission v Kingdom of Belgium, cited above, at paragraph 58). number of birds captured will be small; that
OPINION OF MR DA CRUZ VILAÇA — CASE 252/85
is sufficient reason for considering that the Consequently, by permitting the use of limes decrees do not satisfy the conditions for and nets, as described above, the French derogations laid down in Article 9 of the legislation at issue does not comply with the directive. directive.
On those grounds, I propose that the Court should declare that the French Republic has failed to adopt, within the prescribed period, the provisions needed to implement all the obligations arising out of Council Directive 79/409/EEC of 2 April 1979 and that it has thereby failed to fulfil one of its obligations under the EEC Treaty.
Since the French Republic has in the main failed in its submissions, and since its own conduct gave rise to the fourth and fifth complaints and, subsequently, enabled them to be regarded as devoid of purpose, it should be ordered to pay the costs.