C-435/92

APAS v PREFETS DE MAINE-ET-LOIRE ET DE LA LOIRE-ATLANTIQUE

OPINION OF MR ADVOCATE GENERAL VAN GERVEN delivered on 21 September 1993 *

Mr President, 3. Article 1(1) provides that the Wild Birds Members of the Court, Directive 'relates to the conservation of all species of naturally occurring birds in the wild state in the European territory of the Member States to which the Treaty applies. It covers the protection, management and control of these species and lays down rules 1. In this case, the Administrative Court of for their exploitation.' Nantes has referred three questions to the Court concerning the interpretation of Article 7(4) of Council Directive 79/409/EEC of 2 April 1979 on the conser­ vation of wild birds 1 (hereinafter 'the Wild Birds Directive' or 'the Directive'). Article 2 provides generally that 'Member States shall take the requisite measures to maintain the population of the species referred to in Article 1 at a level which cor­ Relevant law and facts responds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements...'.

2. The questions referred were raised in the course of six actions for annulment which were brought before the Administrative Court of Nantes by various environmental associations and a hunters' association Article 5 of the Directive requires the Mem­ against the decisions of the Prefect of Maine- ber States to take steps to prohibit the delib­ et-Loire and of the Prefect of Loire- erate killing, capture, disturbance or keeping Atlantique fixing the closing dates for their of all birds referred to in the Directive. respective departments for the 1992- 1993 hunting season. The various parties base their action for annulment in particular on alleged contraventions of the Wild Birds Directive.

species listed in Annex II may be hunted under national legislation. Mem­ ber States shall ensure that the hunting of these species does not jeopardize conservation efforts in their distribution Article R.224-3 provides that shooting and area. ... hunting with birds of prey shall be open dur­ ing periods to be fixed anew each year by decision of the prefect of each department, on the motion of the departmental director of agriculture and forestry and after the departmental council on hunting and wild 4. Member States shall ensure that the animals and the hunters' federation have practice of hunting,... as carried on in given their opinions. The decision must be accordance with the national measures published at least twenty days before it in force, complies with the principles of comes into force. wise use and ecologically balanced con­ trol of the species of birds concerned and that this practice is compatible as regards the population of these species, in particular migratory species, with the measures resulting from Article 2. They Article R.224-5 prescribes for certain wild shall see in particular that the species to species, including migratory birds and which hunting laws apply are not waterfowl, parameters within which the hunted during the rearing season nor opening and closing dates set by the prefects 3 during the various stages of reproduc­ must lie. For migratory birds the latest per­ tion. In the case of migratory species, mitted closing date is the last day of Febru­ 4 they shall see in particular that the spe­ ary. For waterfowl the latest closing date is cies to which hunting regulations apply are not hunted during their period of reproduction or during their return to 2 — These articles derive from Decree No 86-571 of 14 March their rearing grounds...'. 1986, JORF of 18 March 1986, p. 4521, as amended. 3 — For the wild species not mentioned in Article R.224-5, Article R.224-4 prescribes the earliest permitted general opening date and the latest permitted general closing date. The earliest general opening date is different for four geo­ graphical parts of France (the first Sunday in September in Corsica, the second Sunday in September in the south­ eastern part, the third Sunday in September in the south­ western part and the fourth Sunday in September in the northern and central part) while the latest general closing date for the whole country is the last day of February.

MIGRATORY BIRDS 28 February 1993 Actions for the annulment of the decision of the Prefect of Loire-Atlantique were brought before the same Administrative Court by the same Association pour la Protection des Animaux Sauvages, and by the Groupe WATERFOWL: Ornithologique de Loire-Atlantique, the mallard 10 February 1993 Société pour l'Etude et la Protection de la greylag goose, shoveler, Nature en Bretagne and the Rassemblement pochard and lapwing 20 February 1993 des Opposants à la Chasse, on the ground other waterfowl 28 February 1993 that the decision authorized an overly long hunting season for migratory birds and waterfowl. The Fédération Départementale des Chasseurs de Loire-Atlantique also seeks The Prefect of the department of Loire- the annulment of the decision, but on the Atlantique set the following closing dates by ground that it closes the hunting season for a decision of 22 July 1992: number of species too early.

MIGRATORY BIRDS: woodcock The questions referred and wood pigeon 28 February 1993 other migratory birds 10 January 1993

7. In six orders of 17 December 1992 — one WATERFOWL: for each of the six actions for annulment — mallard 7 February 1993 the Administrative Court of Nantes decided lapwing, golden plover, to refer three questions to the Court for a oystercatcher greylag goose preliminary ruling, namely: and other anatidae 14 February 1993 other waterfowl 28 February 1993

5 — The earliest permitted opening date for all waterfowl is the — whether the closing date for the hunting general earliest opening date as laid down in Article R.224-4. of migratory birds and waterfowl should

I shall examine these three questions in turn. In addition I shall discuss some of the argu­ ments of the various parties before the Court (namely the Prefect of Maine-et-Loire, the 9. The first part of the joint report, which Rassemblement des Opposants à la Chasse, has been put before the Court by various the Fédération des Chasseurs de Loire- parties, contains the results of a study con­ Atlantique, the French Government and the cerning the pre-mating migration of Commission of the European Communities). 6 waterfowl in France. It is apparent from the However, reference is made to the Report preface by the Secretary of State for the for the Hearing for a full review of the argu­ Environment that the study was expressly ments of the various parties. intended to assemble scientific data for the application of Article 7(4) of the Wild Birds Directive, in particular of the provision therein that the Member States 'In the case of migratory species... shall see... that the Answer to the first question species to which hunting regulations apply are not hunted... during their return to their rearing grounds' (see paragraph 3 above). 8. The first question referred is the question whether the closing date for the hunting of migratory birds and waterfowl should be 6 — The report thus contains no information concerning migra­ fixed as the date of the commencement of tory birds other than waterfowl. At the hearing the expert called by the French Government confirmed that scientific pre-mating migration or the varying date of knowledge concerning those other migratory birds is more limited. Further research may show that their migration commencement of migration. It is apparent exhibits a greater geographical range than is the case for from the orders for reference of the Admin­ waterfowl. My Opinion concerns all migratory birds; see however paragraph 17 and footnotes 21 and 31 in particular istrative Court of Nantes that by those dates for the other migratory birds.

10. On the basis of this joint report a memo­ randum was drawn up in December 1991 by the French Ministry of the Environment in By way of a summary, the joint report then cooperation with the Muséum National contains the following data for the different d'Histoire Naturelle which summarizes and species of waterfowl: puts into effect the findings of the joint report. In addition the Ministry of the Envi­ ronment also drew up a memorandum con­ cerning the use of quantitative criteria for 1) One generally applicable date for the setting the dates for the opening and closing commencement of pre-mating migration. of the hunting season. That last memoran­ This involves a sort of average which — dum advocated deeming the commencement as I understand it — was arrived at by of pre-mating migration to be significant first taking for each year the median (that only when 10 % of the birds have started is the middle value) date for the various their migration. geographical areas, and then taking the median value for the different years which appears most frequently (this is the 'modus'). It is this average starting date Finally, on 9 January 1992 the Ministry of which the referring court means when it the Environment addressed a circular to the refers to 'the date of the commencement Prefects of the departments — this circular of pre-mating migration.'

8 — AH these data arc expressed with ten days (a decade) as the base unit — each month contains three decades. Thus it is 7 — Thus it is apparent from the study that the commencement stated for the greylag goose that (1) the commencement of of the pre-mating migration of teal varies from year to year pre-mating migration is the first decade of February; (2) this between the beginning of January and the end of February, commencement varies from the first to the third decade of while the commencement of the pre-mating migration of February; and (3) the period of maximum migratory activity garganey always falls between the middle and the end of is from the second decade of February to the first decade of February. March.

'As far as [concerns]... the interpretation of the... third [sentence] of Article 7(4) of the The Administrative Court states in its orders Directive, it appears from the documents for reference — quite correctly, as I shall before the Court that birds'... migratory explain below (paragraph 18) — that two of movements are subject to a degree of vari­ these four possibilities, namely the period of ability which, owing to meteorological cir­ maximum migratory activity and the point at cumstances, affects in particular the periods which 10% of the birds have started their during which... migration [takes] place. migration are in any event incompatible with Thus... a number of birds of a given migra­ the third sentence of Article 7(4) of the Wild tory species may begin their return journey Birds Directive, as interpreted by the Court to their rearing grounds comparatively early relative to average migratory flows.

9 — At the hearing it was stated by the Rassemblement des Opposants à la Chasse — without contradiction by the other parties — that the Muséum National d'Histoire Naturelle 11 — Commission v Italy[1991] ECR 1-57. expressly distanced itself from this circular, commenting that 12 — The judgment also concerns the second sentence of that the contents had no scientific basis. provision. In the following quotation I omit the references 10 — See footnote 8 for an explanation of this unit. to that sentence.

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The question is therefore whether a Member migrating. The method set in the circular let­ State may authorize hunting to take place... ter of 9 January 1992 from the French Minis­ so long as most birds of a given migratory try of the Environment, according to which species are not yet flying over the territory the hunting season must close when 10% of of that Member State towards their rearing birds have begun to migrate, is thus compat­ grounds, or whether the national legislature ible with the Directive, because a much has to add to the habitual... migration period higher percentage than 50%, namely 90%, of an additional period designed to take birds are protected by it. account of the variations mentioned above.

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On Article 2 (see paragraph 3 above) a general this point a parallel may be drawn with obligation on the Member States to take 'the Article 4(4) of the Wild Birds Directive. That requisite measures' and secondly a number provision contains several specific obliga of specific obligations set out in the subse tions relating to special protection areas for quent articles of the Directive. One of these birds. Member States have repeatedly argued specific obligations, laid down in Article 5, in connection with these obligations that concerns the prohibition on hunting species exceptions or derogations should be possible of birds occurring in the wild state.

First there are more generally formulated restric tions, namely in the last sentence of Article 7(1) and the first sentence of Article 7(4), which reflect the general obligation set out in Article 2 of the Directive. Secondly there are two restrictions, set out in the second and third sentences of Article 7(4), which are very clear and specific in nature and which 14 — I shall discuss no further the prohibition in the same sen tence on hunting migratory birds during their period of apply 'in particular'. The second of these last reproduction or the analogous prohibition in the previous sentence, since they are not in issue in this case.

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so for Article 4(4) of the Directive, it appears (third recital in the preamble to the Direc­ to me a fortiori to apply to the even more 16 tive).' clear and specific prohibition in the third sentence of Article 7(4).

I also referred to the case-law of the Court holding that the faithful transposition of the Wild Birds Directive into national law is 'particularly important in a case such as this in which the management of the common 16. In my Opinion in Case C-157/89, cited heritage is entrusted to the Member States in above, I explained as follows the importance their respective territories.' 17

attached in the Wild Birds Directive to the general prohibition on hunting during the pre-mating migration:

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of the Directive is the protection of species make complete protection nonetheless pos­ of birds, not the protection of individual sible, build in safety margins, as is clear from birds. I consider however that there is a con­ the judgment in Case C-157/89. travention of the Directive when the closing date for hunting is set in such a way that an 'incomplete' protection of a species of bird during its migration can be expected. In my view this means that the Directive requires Member States to fix the closing of hunting 18. It is accordingly for the Member States in accordance with a method which is such to choose the actual method to be used for as to make possible complete protection dur­ setting in practice the closing date for hunt­ ing migration, even though in practice there ing. It is therefore not for the Court to select may be lacunae in the protection. No a specific method, let alone to involve itself method can guarantee that each individual in technical disputes over statistics. The bird is protected at all times. Court can only emphasize, as indicated above, that it follows from the Directive that the closing date must be set in accordance with a method which is such as to make complete protection during pre-mating migration possible (see paragraph 17 above). Although such a position does not involve a positive choice of one method or another, it nonetheless rules out a number of methods because they do not satisfy that condition.

The methods precluded by the Directive ling, in particular the grouping of numbers seem to me also to include those which con­ by decade (see paragraphs 9 and 10 above), is sist in calculating an average date of the in itself compatible with the Directive. As commencement of pre-mating migration (for the Commission explains, it is customary for the different species of birds, the different practical and technical reasons to group the years and/or the different geographical areas) observations relating to migratory move­ and in setting this, without adding a safety ments by decade. The fact that this technique margin, as the general closing date. It is is used in itself says nothing about the ques­ inherent in such an average date that in tion whether the method of setting the clos­ approximately half the cases it will fall later ing date is such as to make complete protec­ than the actual commencement of the migra­ tion during migration possible. This depends tion of a particular species of bird in that on other things, as a simple example can 21 year and/or in a particular region. Such a illustrate. Suppose that observations have method thus does not make complete pro­ shown that a specific species of bird in a par­ tection possible. If I understand it, the start­ ticular region always begins pre-mating ing date of pre-mating migration, as referred migration in the second decade of February, to in the joint report (paragraph 9 above), is that is between 10 and 20 February. If the 22 such an average date. closing date for hunting, on the basis of that datum, were set at 15 February, then there would be a contravention of the Directive, given that the species concerned would then not be protected during the first days of its migration. Setting the closing date for hunt­ ing at 10 February would alone be compat­ On the other hand, it is clearly compatible ible with the Directive. with the Directive to close hunting generally on the earliest of the parameter dates within which the start of migration varies between the different species of birds, the years and/or the different regions. This method clearly makes complete protection possible.

namely the risk of confusion and the distur­ 21. As the Administrative Court of Nantes bance which is caused by hunting: has itself indicated — and all the parties seem to agree — there are two factors which raise the question whether closing dates for hunt­ ing are compatible with the system of pro­ tection provided by Article 7(4) of the Directive. 'A working document submitted by the French delegation on the ORNIS committee and a memorandum from the Museum National d'Histoire Naturelle of July 1992 show that the distinction between birds belonging to closely-related species is a deli­ First there is a risk of confusion between cate matter when hunting is actually under species of birds for which hunting has way and that the risk of confusing species is already been closed and species for which high. Moreover, in Case C-157/89 the Judge- hunting is still permitted. The Administrative Rapporteur, quoting from a report presented Court of Nantes refers in this connection to in May 1986 to the International Congress a memorandum from the French Muséum "Wildtiere und Umwelt" (Wild animals and National d'Histoire Naturelle of July 1992 in environment), observed that "If the hunting which this problem is discussed. This memo­ season is excessively extended it may have an randum was submitted to the Court by the adverse effect not only on the species which Rassemblement des Opposants à la Chasse are hunted but also, owing to the disturbance and no other party has put in question its it causes, on various species which are not scientific nature or put forward any evidence hunted but occupy the same habitat and it to different effect. In the memorandum it is may be regarded as a factor limiting the pos­ explained that the risk of confusion depends sibilities for the colonization of new terri­ on a whole series of factors, such as the tory by pioneer migratory species".' observation distance, the brightness of the sky, the length of time the bird is visible and the experience of the hunter. The memoran­ dum notes further that 'it is important to emphasize that anatidae frequently move in flocks of mixed species. A group of ducks 20. The Rassemblement des Opposants à la may sometimes include three, four or even Chasse argues before the Court for an affir­ five different species. As a result, "selective" mative answer to the second question, rely­ shooting becomes practically impossible.' ing principally on the protective aim of The memorandum concludes as follows: Article 7(4) of the Directive and taking account of the gravity both of the risk of confusion and of the disturbance caused by hunting. The French Government and the Fédération des Chasseurs de Loire- Atlantique argue for a negative answer, on 'Apart from the difficulties which a hunter the basis of the coherence of the Directive may experience in adequately memorizing and the case-law of the Court. Finally, the the period in February which corresponds to Commission puts forward arguments in both a particular waterfowl, he must first cor­ directions. Personally I consider that I can rectly identify its species. Given the French sooner agree with the first view, for the rea­ practices for hunting that category of game, sons set out below. in particular at dusk and during the night,

22. It appears to me hardly disputable that both the risk of confusion and the distur­ bance due to hunting are important in the context of the system of protection set up by the Wild Birds Directive. 23. In discussing the first question referred I emphasized — with reference to the judg­ ment in Case C-157/89 — that the third sen­ tence of Article 7(4) of the Wild Birds Direc­ So far as concerns the risk of confusion, it tive has as its aim a complete system of seems to me that the third sentence of protection during pre-mating migration. The Article 7(4), in so far as it contains a prohi­ facts and law summarized above seem to bition on hunting birds during their return indicate that staggering the closing of hunt­ to their rearing grounds, also applies to birds ing by species is difficult to reconcile with which are not deliberately hunted but which the Directive.

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24. A second argument, put forward by the French Government, the Federation des Chasseurs de Loire-Atlantique and the Commission, refers to the fact that the Directive is based on a system of lists of dif­ 25. A third argument put forward by the ferent bird species, of which some may be parties based on the proposition that the set­ hunted and others not. It follows, it is ting of staggered closing dates is compatible argued, that the prohibition on hunting dur­ with the Directive refers to earlier decisions ing the pre-mating migration must also be of the Court. In the view of the French Gov­ considered species by species. That seems to ernment, the Court accepted implicitly in its me an erroneous deduction. It is true that judgment in Case C-157/89, cited several Article 7(1) of the Directive permits hunting times above, that staggered closing dates are of the species mentioned in Annex II and reconcilable with the Directive. In the view that it could be inferred therefrom that cer­ of the Federation des Chasseurs de Loire- tain species of birds may be hunted at the Atlantique, this is even more clear from the same time as the hunting of other species is 23 judgment in Case 262/85. The Commis­ prohibited. Article 7(1), however, simply sion also observes that the Court has never contains a permissive provision which applies generally throughout the year and thus also during periods of the year which are less sensitive from the point of view of 23 — Case 262/85 Commission v Italy [1987] ECR 3073.

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establish that the obligation has not been ful sion had not expressly argued the contrary, filled, and in so doing the Commission may and in any event had adduced no evidence 24 not rely on any presumption.' whatsoever to that effect. Since the Commis sion based itself solely and exclusively on the data concerning the migratory period of each species, the Court could not do otherwise 29 In neither of the abovementioned cases had than take that evidence alone into account. the Commission put forward specific argu ments supported by evidence that the fact of staggering the closing dates for hunting amounted to a failure to fulfil an obligation under the Directive. In Case 262/85 the Commission had argued very generally that the Italian legislation took no account of the different protection periods as required by 25 — In its reply the Commission had also slated that the closing dates had been erroneously chosen. This claim was however Article 7(4), such as the protection period for inadmissible because it had not been part of the administra migratory birds during their pre-mating tive procedure; see paragraph 24 of the judgment. 26 — Paragraph 23 of the judgment. 27 — Paragraphs 21 to 27 of the judgment. 28 — Paragraphs 25 and 26 of the judgment. 29 — At the hearing it was observed by the Rassemblement des 24 — Judgment in Case 96/81 Commission v Netherlands [1982] Opposants à la Chasse — without any contradiction by the ECR 1791, at paragraph 6; see also inter alia the ludgmcnl other parties — that the Italian legislature had in the mean in Case C-62/89Commission v France [1990] ECR I-925, at time implemented that judgment by a new law establishing paragraph 37. a uniform closing date.

Although I do not clearly see how, in view of the dangers of confusion and disturbance, setting staggered closing dates can be recon­ ciled with the requirement of complete pro­ I am at one with the Commission's view that tection of birds the hunting of which is in the Directive in many respects gives the any event prohibited, I cannot exclude a Member States a broad discretion and that priori the possibility that a Member State the Court in its interpretation of the Direc­ may succeed in giving sufficient guarantees in tive must not go further than is necessary in that regard. However, a heavy burden of the light of the Directive's objective of pro­ proof rests on the Member State concerned tection. In this case however I am not wholly which it will have even more difficulty in convinced by the Commission's reasoning. discharging in the absence of valid scientific In so far as concerns the risk of confusion, I and technical data concerning both the dates can certainly accept that there are solutions over which the migration of the birds con­ other than the imposition of a uniform cerned is spread and the scale of the (early) closing date for the hunting season. abovementioned risks of confusion and dis­ Accordingly, the checking of hunters' orni­ turbance. In a reference for a preliminary thological knowledge when granting hunting ruling it is not for the Court of Justice but permits and the rigorous prosecution of con­ for the national court to verify whether the traventions are undoubtedly appropriate. I Member State has discharged this burden of doubt however whether that will suffice. The proof. abovementioned memorandum from the French Museum National d'Histoire Naturelle (see paragraph 21) indicates vari­ ous other relevant factors, unconnected with 30 — As observed by the Rassemblement des Opposants à la Chasse, it is also the only method which is preventive. the hunters' ornithological knowledge, such Under Article 130r(2) of the EEC Treaty, action by the Community relating to the environment shail be based on as the meteorological conditions, the time of the principle, among others, of preventive action.

Answer to the third question times in different parts of a Member State, that Member State can therefore implement the Directive by setting a different closing date for each region provided that complete protection is made possible in each region, taking into account in addition the risks of confusion and disturbance discussed above (paragraph 21). 27. The third question referred concerns the compatibility with the Directive of the Pre­ fects' power to fix the closing date for the hunting season in their department. As I understand it on the basis of the orders for reference and the parties' observations, the Neither is the fact that power to implement question in fact comprises two aspects, is conferred on a local authority or regional which are certainly linked but do not neces­ administrative body in itself contrary to the sarily coincide. The first is the question Directive. The Directive contains no specific whether the Directive permits the closing of provision on this point, so that the Member the hunting season to be set on different States have ample freedom. As the Commis­ dates in different parts of a Member State, or sion and the Rassemblement des Opposants whether a uniform closing date is required. à la Chasse rightly observe, this freedom is The second is the question whether a Mem­ however limited by the general obligations ber State may leave the implementation or of the Member States in connection with the transposition of the Wild Birds Directive to implementation of directives, which apply local authorities or whether implementation also to the Wild Birds Directive. I am here at the national level is required. As to both referring to — in the words of Mr Advocate aspects there appears to be fairly substantial General Da Cruz Vilaça in Case 247/85 — agreement between all parties before the 'the previous decisions of the Court... Court and I can accordingly also be brief in according to which it is essential that each my discussion. Member State should implement directives in a way which fully meets the requirements of clarity and certainty in legal situations which directives pursue. The transposition of the directive into national law must not there­ fore be left to a national or regional admin­ istrative body whose discretionary power is not circumscribed by the applicable statu­ 28. That the closing dates for hunting sea­ tory provision in such a manner as to ensure sons vary from region to region is in itself full compliance with the conditions laid 32 compatible with the Directive. As I have dis­ down by the directive.' So far as concerns cussed in detail with reference to the first the third sentence of Article 7(4) of the Wild question referred (see paragraphs 17 and 18), Birds Directive, this means specifically that the third sentence of Article 7(4) requires only that the closing date for hunting be set in such a way as to make possible complete 31 — See footnote 6 with reference to migratory birds other than protection of migratory birds during their waterfowl; see also footnote 21. pre-mating migration. If it appears that the 32 — Opinion of Mr Advocate General Da Cruz Vilaça in Case 247/85 Commission v Belgium [1987] ECR 3029. at pp. pre-mating migration begins at different 3055-3056.

2) It is incompatible with the third sentence of Article 7(4) of that Directive for a Member State to fix closing dates which vary according to species, unless that Member State, on the basis of valid scientific and technical data, can give suffi­ cient guarantees in the view of the national court that staggering the closing dates in that way does not impede complete protection during pre-mating migration as specified in paragraph (1) above.

3) On condition that complete protection is made possible in each region, the fix­ ing of closing dates varying by region is compatible with the Directive. If power to fix the closing date for the season for hunting migratory birds

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is conferred on a locai authority or a regional administrative body, the legal provisions which confer that power should ensure that the closing date can be fixed only in such a way as to make possible complete protection during pre- mating migration.

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