C-262/85

Mr President, The failure will persist for as long as there Members of the Court, remains a discrepancy between the national legislation in force and the requirements of Community law, and is not to be remedied 1. The Italian Republic is alleged to have by merely declaring that legislative failed to fulfil its obligations under Council amendments are forthcoming. Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, the provisions of which have not, apparently, The delay in adopting the legislative been transposed fully and correctly into measures necessary to comply with the Italian law within the prescribed period. directive may well be the result of the complexity of the procedure in Italy for adopting legislation. That was made clear in The transposition of that directive into the oral explanations provided by the Member States' internal law is the subject of representative of the Italian Republic at the a number of other cases pending before this hearing on 17 September 1986. Court. One of those is Case 247/85 Commission v Belgium; in my Opinion in that case I gave a brief description of the Nevertheless, the Court has consistently provisions of the directive so that it is not held that 'Member States may not plead necessary for me now to do so again. I also provisions, practices or circumstances discussed some general points regarding the existing in their internal legal systems in interpretation of the directive. order to justify a failure to comply with obligations and time-limits resulting from Community directives'. ' 2. The Italian Government does not deny that the national legislation relating to the transposition of the provisions of the 3. The substance of the Commission's alle- directive is in some respects defective. gations is that the Italian legislation fails to However, it considers that the allegations comply with Directive 79/409/EEC in six are for the most part unjustified in view of respects, which I shall consider in turn: the fact that, as it stated in its defence, 'a draft law designed to implement the directive in full is now before Parliament'. First complaint: the list of birds which may be hunted Although that is evidence of a laudable intention to comply with Community requirements it is not, as everyone is aware, Article 7 and Annex II of the directive list sufficient to justify a failure to fulfil obli- the species of birds which may be hunted. gations. 1 — See, for example, the judgments of 2 December 1980 in Cases 42/80 and 43/80 Comminimi v italian Republic * Translated from llic Portuguese. [1980] ECR 3635, at p. 3640, and 3643, at p. 3648.

The Italian Government does not dispute that complaint, but observes that jays Derogations constitute exceptions to the (Garrulus glandaius) and magpies (Pica rule and as such must be interpreted strictly; pica) — and, apparently, the hooded crow they are not compatible with such a wide (Corvus corone comix)—were included, application as to make them cease to be according to Article 4 of the Decree of 4 exceptional. June 1982, owing to the 'potentially harmful character of those species' and that therefore their inclusion could be justified in Moreover — quite apart from the fact that accordance with the third indent of Article it has not been demonstrated that 'there is 9 (1) (a) of the directive. no other satisfactory solution' (Article 9 (1) of the directive) — it is doubtful whether the Italian decree in question complies with all the formal requirements laid down in It does not appear, however, that the Italian Article 9 (2) of the directive and it is certain Government is seeking to rely formally on a that the Italian Government has failed to derogation from the provisions of Article 7 comply with the requirement in Article 9 and Annex II of the directive in order to (3), which requires that an annual report be counter the allegation that it has failed to sent to the Commission so that it can then fulfil its obligations in this respect. check the lawfulness of the derogations.

Its argument is that Article 20 (t) of Law States may apply existing national rules No 968 considerably restricts marketing by without prejudice to Article 6 (3) (Article 6 prohibiting 'the sale of woodcock in any W). form whatsoever, and of dead birds smaller than song-thrushes except starlings, sparrows and skylarks during the period when hunting is permitted.' As the Commission points out, the Italian legislation contains no reference to those rules or restrictions. As the Commission pointed out in its reply, however, Article 6 of the directive prohibits the marketing of all birds, whether alive or Be that as it may, even if the Italian legis- dead, whole or otherwise, other than the lation does not entirely fail to restrict species listed in Annex III, and therefore the marketing, in view of the limitations Italian legislation is unsatisfactory inasmuch imposed by Article 20 (t), its scope is as: certainly greater than that permitted by the directive.

OPINION OF MR DA CRUZ VILAÇA —CASE 262/85

failed to take into account the matters referred to in Article 7(4) of the directive; it did not state any view as to the appropri- Put simply, the case-law of the Court is ateness of the dates chosen. As far as the consistent to the effect that the subject- Italian Government is concerned this matter of the dispute is defined in the represents an unacceptable extension of the application (Article 38 (1) (c) of the Rules initial complaint in so far as it contains new of Procedure) and may not be altered by the complaints incompatible with observance of parties during the proceedings.2 That is not the Italian Republic's rights of defence. in any way incompatible with Article 42 of the Rules of Procedure, which permits fresh issues to be raised in the course of In my view, that objection can be upheld proceedings only if they are 'based on only in part. matters of law or of fact which have come to light in the course of the written It is true that the notification of the procedure'. complaint of failure to fulfil obligations, the reasoned opinion and the application all refer to the fact that Article 11 of the Italian In addition, the Court has already estab- law fixes dates for the opening of the lished 3 that in actions brought under Article hunting season without taking due account of the rearing season, the various stages of 2 — See, for example, the judgment of 25 September 1979 in reproduction and dependency and, in the Case 232/78 Commission v France [1979] ECR 2729; the judgment of 9 December 1981 in Case 193/80 Commission case of migratory species, their return to v Italy [1981] ECR 3019; and the judgment of 8 February their rearing grounds, in breach of Article 7 1983 in Case 124/81 Commission v United Kingdom of Great Britain and Northern Ireland [1983] ECR 203. (4) of the directive. 3 — See the judgments cited in the preceding note and also the judgment of 22 March 1983 in Case 42/82 Commission v France [1983] ECR 1013; the judgment of 27 March 1984 Nothing is said, however, of the dates for ¡n Case 50/83 Commission v Italy [1984] ECR 1633, at p.

COMMISSION v ITALY

As regards the reference to the dates for the That does not amount to a fresh allegation opening of the hunting season, the in addition to that formulated in the defendant would appear to be in the wrong. original application. In the application, as in the previous documents emanating from the 4 — Sec, for example, the judgment of 8 February 1983 in Case 124/81, supra, [1983] ECR 203; the judgment of 31 Commission, all the elements — albeit in January 1984 in Case 74/82 Commission v Ireland [1984] summary form — necessary for under- ECR 317; and the judgment of 11 July 1984 in Case 51/83 Commission v 7(<i/y[1984] ECR 2793. standing the scope of the complaint had

OPINION OF MR DA CRUZ VILAÇA —CASE 262/85

I therefore conclude that, in that part of the On the other hand, there is no ground for complaint, the subject-matter of the the complaint — made only in the reply and application or, if you like, its essential in any case only implicitly — that the Italian import, is the same, since neither in the legislation does not contain an express reply nor at any other stage of the prohibition of hunting during the periods of proceedings was it altered — there was rearing, reproduction and dependency. As merely clarification of its exact purport. the defendant pointed out in the rejoinder, Article 11 (1) of Law No 968 of 1977 Consequently, the objection of inadmissi- contains a general express prohibition of bility raised against it (regarding the dates hunting, subject to the exceptions set out in for the opening of the hunting season) by Article 11 (2), for the species and periods the Italian Government must be dismissed. named therein. Hence the complaint is both out of time and unfounded. I will therefore proceed to examine the substance of this complaint. The question here is a simple one. Fourth complaint: the use of repeating and semi-automatic rifles Contrary to the defendant's contention in the rejoinder that the birds nesting in Italy The Commission maintains that Article 9 of in August are only sedentary species for Law No 968 of 27 December 1977 of the which hunting is authorized only after Italian Republic permits the use of repeating the third Sunday in September, the and semi-automatic rifles capable of firing Commission, in reply to a question put by three shots, in breach of Article 8 (1) and the Court, named four species of birds Annex IV of the directive, which prohibit whose period of reproduction and the use of such weapons with a magazine dependency extended beyond the date for capable of holding more than two rounds of the opening of the hunting season for those ammunition. The Commission maintains species (18 August). that the provisions of the directive must be

I have no doubt that a literal interpretation of the directive would, on this point, Thus there is every indication that the support the Italian Government's argument. intention of the. Community legislature was, likewise, solely to prohibit the use of weapons with more than three shots; had it Also in its favour is the consideration that if been otherwise, it would instead have the aim had been to confer the maximum restricted the prohibition to the introduction of more than two rounds of ammunition protection possible under the directive, the into the magazine. use of repeating or semi-automatic weapons would have been either prohibited altogether or restricted to weapons firing Article 9 of Law No 968 of 27 December one or two shots. 1977 only permits the use of 'automatic or semi-automatic [weapons] with a device preventing more than three shots from being However, that was not done by the fired', and therefore it is not possible to say Community legislature: it merely prohibited, that the Italian legislation is in that respect ipsis verbis, the use of weapons with a incompatible with the Community directive; magazine capable of containing more than accordingly, the fourth complaint has not two rounds of ammunition. been duly proven.

The intention of the Community legislature Fifth complaint: the powers given to regions may be inferred from the elements relied to permit the capture and sale of migratory upon by it in drafting the directive. birds

One of those was the Convention on the The Commission maintains that Article 18 Conservation of European Wildlife and (2) of the Italian law is incompatible with Natural Habitats, of the Council of Europe Articles 7 and 8 of the directive inasmuch as

Discussing this complaint further in the Finally, the Commission claims that use for reply, the Commission stated that, in its the purposes of bird fanciers at traditional view, the possibility thus conferred by the fairs and markets, as referred to in the legis- Italian law was not only manifestly incon- lation at issue, is a reason for capture which sistent with what the defendant State stated does not appear in any of the provisions of in relation to the third complaint, but would the directive. amount, if it were found that no derogation was available under Article 9 of the directive, to an unequivocal breach of Italy denies that Article 18 (2) of Law No Article 7 (4) of the directive. 968 confers on the regions a wide margin of discretion or what might be described as a general and indiscriminate authorization. Moreover, since the opinion of the Istituto Nazionale di Biologia della Selvaggina is not binding, Artide 7 (1) of the directive is In fact the law states expressly that the deprived of all effect, given the margin of powers conferred on the regions to discretion thus conferred on the regions. authorize such activities must be exercised The examples cited at the hearing by the under 'specific regulations', and obviously Commission (and not contested by the those regulations cannot depart from the Italian Government) would seem to confirm terms of the law itself or of the relevant that contention. Community directives.

In addition, as regards the authorization to The restrictive nature of the regulations is capture the migratory species referred to in reinforced by the closing words of Article

18 (2) of the Italian law, by virtue of which that derogating provisions are exceptions to the species of birds to which it refers may the rule, which must be strictly interpreted, only be 'trapped in limited numbers as I said earlier) the regulations and the previously fixed for each species'. application of the general rules relating to the possibility of derogations under Article 9 are essential for ensuring their compatibility If it is also borne in mind that the fact that with the requirements of that article (both the power conferred on the regions is the general principles laid down in Article 9 further restricted by the opinion (obligatory, (1) and the requirements mentioned in although not binding) to be issued by the Article 9 (2)). Istituto Nazionale di Biologia della Selvaggina, it is apparent that the conditions which must be satisfied in order to qualify The position here is that, in the first place, for the exception laid down in Article 9 (1) the Italian State, in contravention of Article (c) of the directive are met. 9 (3) of the directive, never provided the Commission with any report which would have enabled it to verify, pursuant to Article In any case, the possibility of using birds 9 (4), the consequences of the derogations 'for the purposes of bird fanciers at tradi­ and their compatibility with the directive. tional fairs and markets' is covered by Article 2 of the directive, which states that account may be taken of 'economic and recreational requirements'. Even if that fact cannot be relied upon to found a declaration of failure to fulfil obli­ gations (since it was not raised during the Those arguments call for the following procedure prior to the action), it must observations. seriously influence the way in which the content of and the mode of implementing the national legislation are assessed in the light of the requirements of Community According to the strict letter of the law, law. Article 18 of Law No 968 might be regarded as potentially containing the necessary elements to qualify, within the ambit of that article, as an exception of the In the second place, it must be borne in kind provided for in Article 9 (1) (c) of the mind that, with respect to various matters directive (but not also of the kind envisaged including hunting, Article 117 of the in Article 9 (1) (b), as the Italian Constitution of the Italian Republic provides Government contends, that subparagraph that 'it is for the regions to a d o p t . . . legis­ being, in my view, entirely irrelevant to the lation within the limits of the fundamental case). principles established by the laws of the State, provided that such legislation does not conflict with the national interest or that I also consider that it is theoretically of other regions'. In addition, Article 6 of possible to rely on the mention of economic Presidential Decree No 616 of 24 July 1977 and recreažional requirements in Article 2 of provides that 'the administrative functions the directive. relating both to the application of European Economic Community regulations and to the implementation of directives transposed Nevertheless, it must not be forgotten that into national law by the State by means of a in cases like this (and in view of the fact law which expressly sets out the basic prin-

We have already seen that in one case at least (the Friuli-Venezia-Giulia region) the use of snares and viscous substances is auth- Even so, I do not think that it is possible to orized whereas the directive prohibits them. declare that the Italian Republic has failed At the hearing, the Commission to fulfil its obligations on the basis of the supplemented the information already omissions of the regional authorities or of provided by reporting that in the same the government in relation to them, since region the capture of two million birds was such a declaration clearly must have a authorized in 1982 under Article 18; proper basis not only in the complaints similarly, another region permitted the notified during the procedure prior to the hunting of 900 000 birds. action but also in the terms of the application itself. In the former the Commission merely challenged, directly and expressly, Article 18 of Law No 968 and in That means either that certain regional the latter, after restating exactly the terms regulations are clearly contrary to the of the reasoned opinion, it never actually

COMMISSION v ITALY

Apart from the reference to the 'limited To summarize, I am of the opinion that numbers previously fixed ho indications are Article 18 of Law No 968 is not adequate to given as to the species of birds which may achieve the level of protection envisaged by be captured, the permissible arrangements Directive 79/409 for the purpose of serving for capture, the use of live decoys, or the both as a suitable framework for regional use of birds in fairs and markets — indi- powers and as a clear-cut basis for any cations which would serve as a guide to the derogations under Article 9 of the directive. regions as to how they might unequivocally meet the requirements of Directive 79/409/EEC and achieve its aims. Sixth complaint: the use of migratory birds as live decoys

As we have seen, according to the division of powers under Italian law (Decree No 616 In the notification of failure to fulfil obli- of 1977) between the central State and gations, in the reasoned opinion and in the the regional authorities as regards the application the Commission alleged that implementation of Community directives, it Article 18 of the Italian law permitted the is the duty of the State to adopt 'a law use of migratory birds 'as live decoys in which expressly indicates the basic prin- hunting, in breach of Article 8 of the ciples'. In exercising their legislative or directive'.

OPINION OF MR DA CRUZ VILAÇA —CASE 262/85

In that connection, I do not consider that In my view the objection raised by the Article 18 of the Italian law is incompatible Italian Government should be upheld. with Article 8 of the directive inasmuch as it permits the use of live birds as decoys. Despite the fact that the original complaint refers to Article 8 of the directive which in What Article 8 and Annex IV of the turn refers to Annex IV, that complaint directive prohibit is the use as decoys of live identifies a specific provision of the Italian birds which are blind or mutilated. law (Article 18) which wrongly permits the use of live decoys, whereas in the reply, without reference being made to any legal provision in particular, it is alleged that the Thus what the prohibition actually relates to Italian legislation fails to prohibit the use of is not in fact the use of live birds as decoys decoys which are not only blind but also but the blinding and mutilating of them. mutilated. In my view, although the Article 18 of the Italian law does not permit complaint is correctly formulated, it ought migratory birds to be blinded and mutilated but merely allows them to be used as to refer to Article 20 (o) of Law No 968, decoys. which prohibits solely the use of live blind decoys, when it ought to prohibit the use of such decoys which are not only blind but also mutilated. Hence, in my view, the sixth complaint must fail.

Thus there has been not merely an enlargement or amplification of the original 4. To summarize, in these proceedings complaint — a separate one has been added there are two perfectly documented which cannot be regarded as having the instances of insufficiency. same subject-matter as the first. The arguments relied upon by the Italian Government in its defence would certainly On the one hand, a Member State have been different had the initial complaint decided — as it was entitled to — not to been the same as that formulated in the participate in the procedure prior to the reply; it might have sought to rely not on action initiated pursuant to Article 169 of