C-339/87

The present case concerns a number of 3 provisions of the Jachtwet (hereinafter referred to as the 'Hunting Law') and a 2. Under Article 18 of the Directive the decree of 8 August 1977 opening and Member States were required to bring into closing the hunting season made by the force the laws, regulations and adminis­ Minister for Agriculture and Fisheries in trative provisions necessary to comply with pursuance of Article 20 of the Hunting 4 the Directive within two years of its notifi­ Law. A regulation of 24 February 1987 cation. Notification took place on 6 April made by the same Minister on the granting 1979. The period for transposition therefore of permits for the hunting of birds is also expired on 6 April 1981. 2 — Judgments of 8 July 1987 in Case 247/85 Commission v Belgium [1987] ECR 3029, of 8 July 1987 in Case 262/85 Commission v Italy [1987] ECR 3073, of 17 September 1987 in Case 412/85 Commission v Germany [1987] ECR 3503, of 13 October 1987 in Case 236/85 Commission v Netherlands [1987] ECR 3989 and of 27 April 1988 in Case 252/85 Commission v France [1988] ECR 2243. 3. The Court has already delivered 3 — Law of 3 November 1954 'Staatsblad 523) laying down provisions relating to hunting, as most recently amended by judgment in five sets of infringement the Law of 7 July 1988 {Staatsblad 462). 4 — Decree No J 2228 (Staatscourant 153) as most recently 5 amended by a decree of 9 October 1987 (Staats- Original language: Dutch. courant 195) on the opening and closing of the hunting 1 — OJ 1979, L 103, p. 1. season.

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COMMISSION v NETHERLANDS

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arguments of the parties. These items in the 9. It is also well settled in the Court's file will be referred to hereinafter only in so case-law that Article 189 does not neces­ far as that is necessary for the reasoning of sarily require the provisions of a directive to the Court. be incorporated in a specific express legis­ lative enactment. Thus the Court has consis­ tently held that

The Court's case-law 'the transposition of Community legislation into national law does not necessarily require the relevant provisions to be enacted in precisely the same words in a specific express legal provision; a general legal 8. Under the terms of the third paragraph context may be sufficient if it actually of Article 189 of the EEC Treaty a directive ensures the full application of the directive is binding, as to the result to be achieved, 8 in a sufficiently clear and precise manner'. upon each Member State to which it is addressed, but it leaves to the national auth­ orities the choice of form and methods. In 6 the Royer judgment of 8 April 1976, the Each time that the transposition of the Court held that the freedom left to the Directive relating to the conservation of Member States by Article 189 as to the wild birds has been before the Court, the choice of forms and methods of implemen­ Court has added this further consideration: tation does not affect their obligation to choose the most appropriate forms and methods to ensure the effectiveness of directives. The Court has progressively 'However, a faithful transposition becomes developed criteria which have enabled a particularly important in a case such as this more precise definition to be given of the in which the management of the common expression 'appropriate forms and methods', heritage is entrusted to the Member States as laid down in the abovementioned in their respective territories'. 9

Annex II to the Directive might be hunted, Law or ministerial regulation? created a legally ambiguous situation. In its judgment of the same date in Commission v Italy (paragraph 39), the Court further held that, since the Italian law did not itself lay down the criteria and conditions provided for in Article 9(2) of the Directive for dero­ gations therefrom and did not require the 12. A number of the Commission's regions to take account of those criteria and complaints concern provisions of the conditions, it introduced an element of Hunting Law which in principle permit the uncertainty as regards the obligations which hunting, or some forms of hunting, of the regions had to observe when adopting protected species of birds. The exercise of their regulations. this general hunting right is, or may be, limited by other provisions laid down by, or pursuant to, the Hunting Law. In its written pleadings the Commission argues that the relevant provisions of the Hunting Law are themselves contrary to the Directive in so The fact that a practice prohibited by a far as they leave open the possibility of directive does not take place does not regulations or applications which are in constitute an adequate defence conflict with the Directive. At the hearing the Commission's representative did, however, adopt a less categorical position (see paragraph 20 below).

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appears that a mere administrative practice, instruments, moreover, contain generally on account of the fact that it may be altered binding rules which can be relied on against at will by the authorities and lacks publicity, and also by individuals. An appeal to the cannot constitute a correct transposition of administrative court will lie against indi­ a directive. Such transposition does not vidual authorizations given by the Minister comply with the requirements of legal which do not comply with the instruments. certainty, since it does not ensure Finally both instruments, as is customary in consistency, publicity and reviewability for the Netherlands for instruments of this the Community rule. kind, were published in the Staatscourant (Dutch official gazette).

Both the decree of 8 August 1977 and the regulation of 24 February 1987 are based on a legislative power conferred on the competent Minister by Article 20 of the It seems to me that, so long as the Council Hunting Law. This seems to me to be an of State has made no definitive pro­ important factor which distinguishes the nouncement on whether there is an two instruments from a mere administrative adequate legal basis for the regulation of 24 10 February 1987 — it was confirmed at the rule (or 'pseudo-legislation'). Both hearing that no such pronouncement has yet 10 — In the Netherlands it appears that pseudo-legislation is to been made — the Court must work on the be distinguished from normal legislation in so far as it is assumption that this regulation is binding. not based on a rule-making power conferred by a formal legislative enactment. See B. Hessel: Rechtsstaat en econo- Accordingly, as things stand I see no reason mische politiek, 1987, pp. 214 et seq. See also C. W. van der to alter the opinion which I have expressed Pot: Handboek van het Nederlandse Staatsrecht, edited by A. M. Donner, 1983, pp. 451 et seq. in paragraph 14.

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17. There is a danger that the protective provisions laid down by the Directive on the conservation of wild birds might be undermined through Member States' adopting too broadly based a policy with 19. In the light of the foregoing consider­ regard to derogations. In its previous ations I shall now examine whether the judgments relating to the Directive on the Commission's allegations are well founded. conservation of wild birds the Court clearly For the sake of brevity, for the expression recognized this danger. In its judgment of 8 'generally binding and published rules' I July 1987 in Commissioyi v Italy (paragraphs shall use the term 'rule-making provisions'. 38 and 39), details were given of the criteria which must be satisfied by a derogation made on the basis of Article 9 of the Directive. Derogations must be applied under strictly supervised conditions and on a selective basis so that the hunting of First complaint: list of birds which may be protected species of birds is limited to the hunted strict minimum. In its judgment of 8 July 1987 in Commission v Belgium (paragraph 34), the Court further held that national rules which did not indicate the reasons mentioned in Article 9(1) of the Directive for which a derogation might be granted, 20. The Commission takes the view that the circumstances of time and place in three provisions of the Hunting Law which derogations might be granted and the (Articles 2 and 20(1) and (2)), together with controls to be carried out, exceeded the the decree of 8 August 1977, made by the limits set by Article 9 of the Directive on the Minister for Agriculture and Fisheries, ground that they were too general in nature. conflict with the provisions of the Directive

Article 2 of the Hunting Law

23. I agree with the Netherlands Government that this complaint is 21. This article lists the animal species unfounded. The provision in question which, for the purposes of the Hunting defines what is to be understood as 'game' Law, are to be regarded as 'game'. This list for the purposes of a law which is intended includes amongst others, the following species of birds living in the wild which are 13 — In paragraphs 15 and 16 of the judgment in Case 247/85, cited above, the Court held as follows: 'In Article 1 bis of not mentioned in Annex II to the the law species of birds not listed in Annex II to the directive are classfied as "game" so that in principle they Directive" and which, therefore, under may be hunted. Even if those species may in fact be hunted Article 5(a) of the Directive may not be only if the competent authorities lay down each year, for each species and for a defined area, the opening and hunted, save under the conditions laid down closing dates of the hunting season, the competent auth­ 12 in Article 9 of the Directive: great snipe, orities still have the power to authorize the commencement of hunting of species which are not mentioned in Annex II carrion and hooded crows, rooks, jackdaws, to the directive but which are listed in Article 1 bis (b), (c) and (d) of the law. jays and magpies. Black grouse also come In those circumstances, it is impossible to accept the argument of the Belgian Government which maintains in essence that the intended result of the directive has been 1 í — Annex II to the Directive lists the species of birds which attained. Article 1 bis (b), (c) and (d) of the law creates a may be hunted under the conditions laid down in Article 7 legally ambiguous situation by not excluding the possibility of the Directive. that species other than those listed in Annex II to the 12 — This species of bird also appears in Annex I to the directive may be hunted in Belgium. The orders mentioned Directive and its habitat must therefore be the subject of by the Commission also demonstrate that the practical special conservation measures, in accordance with Article application of the contested provision does not comply with 4 of the Directive. the requirements of Article 7 of the directive.'

26. For the reasons I have already stated, I take the view that the question whether the provisions of the Directive have been Article 20(1) of the Hunting Law and the transposed into the Netherlands legal order decree of 8 August 1977 must be evaluated on the basis of both the Hunting Law and the rule-making provisions adopted thereunder. I therefore do not share the view that Article 20(1) of the Hunting Law is in conflict with the Directive simply on account of the fact that this provision in principle permits a number of protected species of birds to be hunted. However, I do find that, when this 24. Under Article 20(1) of the Hunting provision is read in conjunction with the Law, the hunting of game listed in Article decree of 8 August 1977, a number of 8(1) — in addition to rabbits, foxes and provisions of the Directive have not been feral cats, the following species of birds are transposed into the Netherlands legal order. included: wood pigeons, carrion crows, Thus, as currently provided for, carrion jackdaws, jays and magpies — is permitted crows, jackdaws and magpies may be the whole year round, unless otherwise hunted throughout the year and jays for determined by the competent Minister. On part of the year. This state of affairs the basis of this provision, the Minister for conflicts with the Directive, which permits Agriculture and Fisheries adopted the birds not mentioned in Annex II to the decree of 8 August 1977. It is provided Directive to be hunted only under the therein that the jay may be hunted from 15 conditions laid down in Article 9 of the July to 30 April in the following year, from Directive. I further find that, under the which it follows that it may not be hunted current rules, the wood pigeon may be from 1 May to 14 July. hunted throughout the whole of the year,

27. The Netherlands Government states that the current rules are justified in order to prevent serious damage to agriculture and to protect flora and fauna. It points out that Article 9(1) of the Directive permits Member States to grant derogations from the prohibition on hunting on these Article 20(2) of the Hunting Law and the grounds. According to the Netherlands regulation of 24 February 1987 Government, the Minister for Agriculture and Fisheries may avail himself of the possi­ bility of adopting divergent rules afforded to him by Article 20(1) of the Hunting Law whenever special circumstances do not necessitate the protection of crops, flora and fauna. 29. Under Article 20(2) of the Hunting Law, the competent Minister, after obtaining the views of the committee on hunting, is to determine to what extent game other than that mentioned in Article 8(1) may be hunted. On the basis of this provision the Minister for Agriculture and Fisheries issued the regulation of 28. I agree with the Commission that 24 February 1987 relating to the grant of the Netherlands Government is thereby licences to hunt birds. Article 2 of this regu­ distorting matters. It is turning a general lation provides that the Minister may grant prohibition on hunting for the sake of the a permit to hunt one or more of the species protection of birds and subject to dero­ of birds listed in the annex. This annex gations in the interests of agriculture, flora mentions the pink-footed goose, the and fauna, into a general authorization to barnacle goose, the brent goose and the hunt for the sake of the protection of agri­ rook. Articles 3 to 5 of this regulation lay culture, flora and fauna and subject to dero­ down the conditions under which the permit gations in the interests of the conservation may be granted. These conditions are based of birds. Moreover, I have already pointed on the conditions laid down in Article 9 of out, at paragraph 18 above, that the strict conditions laid down in Article 9 of the 15 — In the draft regulation amending the decree of 8 August 1977 more details are given of the conditions under which the Minister for Agriculture and Fisheries may grant 14 — In the draft regulation amending the decree of 8 August exemptions from the hunting prohibition in the case of the 1977 (Article 3) it is provided that carrion crow, jackdaw, carrion crow, jackdaw, jay, magpie and wood pigeon jay and magpie are not permitted to be hunted and that the (Articles 4 to 6). These conditions are clearly based on the wood pigeon may not be hunted from 1 May to 15 June. conditions laid down in Article 9 of the Directive.

31. For its part the Netherlands Government points out that, pursuant to Article 20(2) of the Hunting Law, the Whereas it must be assumed, until further hunting of species of birds other than those notice, that the Minister has the aforemen­ mentioned in Article 8(1) is not permitted tioned power (see paragraph 15 above), and unless otherwise provided. The black that therefore Article 20 of the Hunting grouse, the great snipe and the hooded Law empowers him to grant derogations crow are not mentioned in the annex to the from the prohibitions laid down in the regulation of 24 February 1987. Conse­ Directive, it must at the same time be ascer­ quently, the hunting of these species of birds tained that this power is exercised, not is not permitted at any time during the year. merely with regard to the species of birds Moreover, permits to hunt these species of mentioned in the annex to the regulation of birds are not granted. 24 February 1987 but also with regard to all the species of birds protected by the Directive, only under the conditions laid down in Article 9 of the Directive. The Netherlands Government claims that this is 32. For the reasons which I set out in the case. In particular it states that in actual paragraph 13 above, I am of the opinion that Article 20(2) of the Hunting Law does 16 — As has already been mentioned (at paragraph 15) it not conflict with the Directive merely by appears from the documents before the Court that the Council of State appeared to have doubts as to whether reason of the fact that, on the basis of this the regulation of 24 February 1987 had its legal basis in provision, the hunting of protected species Anicie 20(2) of the Hunting Law.

Second complaint: derogations relating to certain species of birds 36. The rights of which the land user may avail himself on the basis of the provisions in question may only be exercised if the competent Minister has not prohibited the 33. The Commission takes the view that hunting of the species of birds mentioned in three provisions of the Hunting Law Article 8, as he has the power to do under (Articles 8, 12 and 22) contain derogations Article 20(1) of the Hunting Law. I have with regard to certain species of birds already established, at paragraph 26 above, conflicting with the Directive. that the Minister has not, or has not entirely, prohibited the hunting of carrion crow, jackdaws, magpies and jays. On those grounds I consider that the current arrangements do conflict with the Directive. Articles 8 and 12 of the Hunting Law But in my view the Commission goes too far when it alleges that Articles 8 and 12 of the Hunting Law in themselves conflict with the directive. Should other rule-making provisions adopted pursuant to the Hunting Law curtail the general right to hunt 34. Under Article 8(1) of the Hunting Law, enjoyed by the land user as regards the the user of land has the right to hunt not protected species of birds I fail to see that only rabbits, foxes and feral cats on the land such an arrangement, albeit cumbersome used by him, but also the following species from a legislative point of view, would run of birds: wood pigeons, carrion crows, counter to the Directive. jackdaws, jays and magpies. Pursuant to Article 8(3) of the Hunting Law the user of land may permit third parties to hunt on the land used by him. Under the terms of Article 12(2)(a) of the Hunting Law, the Article 22 of the Hunting Law abovementioned species of birds may be

Commission takes the view that this acts do not in practice occur. It also points provision conflicts with Article 8(1) of the out that Article 10 of the Hunting Law Directive which imposes on Member States authorizes these acts only in so far as the obligation to prohibit the use of the hunting is permitted. means of hunting listed in particular in Annex IV at (a). Traps are expressly mentioned in this annex. For its part the Netherlands Government claims that wild birds are not hunted with traps in the Netherlands. 40. The defence submission that, in the Netherlands, eggs of the protected species of birds are not taken cannot succeed, as the Netherlands Government has not shown that this cannot occur on its territory. The general prohibition imposed by the Directive 38. The Netherlands Government does not in this regard must be contained in a rule­ demonstrate that hunting with bird traps making provision. To this end, Article 10(2) cannot take place in the Netherlands. As I of the Hunting Law need not necessarily be have already made clear at paragraph 11, amended. So long as this provision can be this defence submission can in the circum­ read in conjunction with a rule-making stances not succeed. The prohibition of the provision of the Hunting Law or its use of bird traps must therefore be ,8 implementing regulations which prohibits contained in a rule-making provision. searching for, taking and possession of eggs, there would in my opinion be no conflict with the Directive. However, such a prohibition is not imposed by the current Third complaint: searching for, taking and regulatory arrangements. The prohibited having possession of eggs of certain species acts are allowed in so far as hunting is of birds permitted and, as I have already pointed out at paragraph 26, the hunting of species of birds mentioned in Article 8 of the law is in principle permitted by the current arrangements. 39. Under the terms of Article 10(2)(b) of the Hunting Law, searching for, taking and having possession of eggs of the game mentioned in Article 8(1) is permitted, provided that hunting of that game is Fourth complaint: derogations for the permitted. The Commission takes the view prevention of damage that this provision conflicts with Article 5(c) of the Directive, pursuant to which Member States are under a duty to prohibit the taking in the wild or the keeping of eggs of birds which are not mentioned in Annex II to the Directive, subject to any derogation 41. Under the terms of Article 53(1) of the in accordance with Article 9. The Hunting Law, the competent Minister may, Netherlands Government argues that these in order to prevent and combat damage, issue permits to hunt particular species IS — The draft regulation amending the decree of 8 August of birds, in derogation from the terms of 1977 (Article 4) provides that bird traps may not be used the Hunting Law or provisions adopted where a licence to hunt protected species of birds is granted pursuant thereto. Under Article 54(1) of the

45. Under Article 27 of the Hunting Law, 42. The Netherlands Government's defence the competent Minister may, inter alia for comes down to this: on the basis of the the purpose of holding competitions for provisions in question, the Minister does not hunting dogs or for the training of such in actual fact issue any permits to hunt dogs, grant a permit for the matters species of birds protected by the Directive. mentioned therein by way of derogation As I have already shown, at paragraph 18 from the Hunting Law. The Commission above, this is not sufficient. The conditions takes the view that this provision conflicts laid down in Article 9 of the Directive governing the grant of derogations, or a 19 — In the draft regulation amending the decree of 8 August decision not to grant derogations, must be 1977 (Article 4) hunting from aircraft is prohibited whenever a permit is granted to hunt protected species of contained in rule-making provisions. birds.

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