C-412/85
ECLI:EU:C:1987:231
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COMMISSION v GERMANY
OPINION OF MR ADVOCATE GENERAL DA CRUZ VILAÇA delivered on 19 May 1987 *
Mr President, laid down in Article 9 of the directive. In Members of the Court, particular, the German legislation does not contain any reference to the principle of proportionality or to the requirement 1. In the series of actions instituted against contained in Article 9 of the directive that various Member States for failing to comply the derogations may be permitted only to with Council Directive No 79/409/EEC of prevent 'serious damage' (unlike the 2 April 1979 on the conservation of wild provision contained in Article 26 (3) (1)). In birds, the Commission on this occasion is the conflict of interests between the challenging the legislation of the Federal protection of wild birds and ordinary use of Republic of Germany, and in particular the the land related to agriculture, forestry and Bundesnaturschutzgesetz [Federal law on fishing, the German legislation always gives the protection of nature] of 20 December precedence to the latter, whereas the 1976. directive permits that order of priorities only in order to prevent serious damage to crops, livestock and forests, and not for reasons of 2. Originally, the Commission made three an economic nature. complaints concerning the incompatibility of that law with the Community directive. However, in the course of the action the Federal Republic of Germany amended the 5. The Federal German Government law on the protection of nature by a law of contends first that Articles 5 and 6 of the 18 December 1986; consequently, the directive concern only intentional acts, in Commission acknowledged at the hearing the sense of acts committed with a specified that two of those complaints were no longer purpose and in order to achieve that justified, since they were remedied by the purpose. The rules on derogating from new text of the law. those articles laid down in Article 9 of the directive are also in its view limited to the intentional acts referred to in those articles. Since acts which are not intentional are not 3. The Commission has not, however, covered by Articles 5 and 6, they are not withdrawn the other complaint, concerning prohibited, and the problem of the Article 22 (3) of the law on the protection of nature, which was reproduced in its application of Article 9 of the directive does entirety in Article 20 (f) (3) of the Law of not arise with regard to them. 18 December 1986.
6. Article 22 (2) of the law on the 4. According to the Commission, the dero protection of nature (Article 20 (f) (1) of gation contained therein, affecting some of the 1986 version of the law), which is the prohibitions included in Articles 5 and contained in a Law which is intended to 6 (1) of Directive No 79/409, is too general protect nature in general, is wider-reaching and does not comply with the strict criteria than the directive itself, since the protection
* Translated from the Portuguese.
OPINION OF MR DU CRUZ VILAÇA —CASE 412/85
which it confers oh wild birds covers both 13. Basically, it would be the idea of intentional acts and negligent acts. 'inevitable consequence' — or, possibly, the 'impossibility of any other con 7. The derogations laid down in Article duct'— which would enable the scope of 22 (3) must therefore, according to the the derogation to be defined so as to avoid German Government, be assessed by any incompatibility with the directive. reference to the level of protection provided for in Article 22 (2) (Article 20 (f) (1) of the
14. However, the distinction — which is in 1986 version of the law); in that context, any event difficult to establish — is not Article 22 (3), in particular when it refers to apparent from the wording of the provision 'normal use of the land', covers only acts or from any other legislative text. which are not intentional, since these are the only acts compatible with the objectives of the provision and of the law on the 15. It cannot be excluded that a wider protection of nature in general, including interpretation of the term 'normal use of the the need to protect nature and the land' would enable intentional acts, countryside. especially those committed without heed to the consequences or even wilfully, to be
8. How is this question to be resolved? included therein. The derogation would then have to satisfy the criteria laid down in Article 9, in particular the reference to any 9. It is clear that the prohibition laid down of the reasons set out therein and the in Article 22 (2) of the law on the inexistence of any other satisfactory protection of nature (Article 20 (f) (1) of solution. the new law) does not distinguish between intentional and unintentional acts, but covers (as is clear from the prohibition laid 16. This clearly is not the case. down in Article 30) harmful acts committed through negligence.
17. Thus, under the law, acts which are not 10. But the derogation provided for in in need of protection become lawful, which Article 22 (3) (Article 20 (f) (3) of the is precisely what the directive seeks to avoid. present version) also draws no distinction between the two types of acts, both of 18. Apart from that, the term 'normal use which are included in the provision in of the land' is compatible with acts — question. committed, for example, with 'deliberate negligence' or 'gross negligence' — which
11. Thus the whole problem resides in the should be discouraged in the context of interpretation to be given to the term such activity, in accordance also with the 'normal use of the land', by which the scope objectives of the directive. of the derogation is defined. 19. The obligation imposed on the courts of 12. It is not disputed that according to a each Member State to interpret its own strict interpretation that term, and hence the national law in the light of the wording and derogation linked to it, can include only purpose of the directive which that law was negligent acts or, at most, acts committed intended to implement 1does not affect the recklessly. That result could thus be consistent with the customs prevalent among 1 — See judgments of 10 April 1984 ¡n Case 14/83 Von Co/son the farmers and fishermen of the Federal and Kamann v Land Nord Westfalen and Case 79/83 Harz Republic of Germany. v Deutsche Tradax, [1984] ECR 1891, at p. 1909, paragraph 26, and 1921 at p. 1942, paragraph 26.
COMMISSION v GERMANY
obligation imposed on all the other auth with directives of the legislative text by orities of that Member State, particularly which they are supposed to be the legislature, to adopt all the measures implemented. 2 necessary, within the scope of their competence, to ensure that the Community 21. Evidence of such ambiguity may rule is implemented and the objectives perhaps be found in the following fact cited thereof are attained. by the Government of the Federal Republic of Germany in its reply to the notice that it had failed to fulfil the directive: certain 20. That does not mean that the contested Länder have reproduced Article 22 (3) of provision flagrantly infringes the rules of the the law on the protection of nature in their directive; however, it fails to remove an own laws for the protection of nature, ambiguity as regards the scope of the obli whereas others have adopted narrower gations which it imposes, and therefore provisions in derogation from that cannot be regarded as satisfying fully the provision. That was the case of Lower requirements of clarity and certainty of the Saxony, which restricted the derogation in rights and obligations flowing from the question to cases in which it is not possible directive, which according to the judgments to avoid the damaging consequences of of the Court of Justice may be considered a normal agricultural and forestry operations condition for recognizing the conformity on plants and animals especially protected.
22. For these reasons I propose that the Court should declare that the Federal Republic of Germany has failed to adopt within the period prescribed the provisions necessary fully to comply with the obligations arising from Council Directive No 79/409 of 2 April 1979 and has therefore failed to comply with an obligation under the EEC Treaty.
23. In accordance with Article 69 (2) of the Rules of Procedure the unsuccessful party must be ordered to pay the costs.
2 — See for example, judgment of 6 May 1980 in Case 102/79 Commission v Belgium [1980] ECR 1473 et seq.; similarly, judgment of 30 January 1985 in Case 143/83 Commissionv Denmark [1985] ECR 427 et seq.