C-118/94

ASSOCIAZIONE ITALIANA PER IL WWF AND OTHERS ν REGIONE VENETO

OPINION OF ADVOCATE GENERAL FENNELLY delivered on 26 October 1995 *

I — Introduction adopted Decision N o 4209 approving the hunting calendar for the 1992-93 season. The Associazione Italiana per il World Wildlife Fund (hereinafter 'WWF Italiana') and a number of other organizations sought the annulment of this decision, inter alia, on the 1. Can a Member State rely upon Arti­ ground that the calendar permitted the hunt­ cle 9 of the wild birds directive 1 to justify ing of certain species of wild birds not listed the delegation, by means of a national law, to in the relevant annex to the Directive, and regional or provincial authorities of the that the conditions for relying on the dero­ power to permit the hunting of bird species gation allowed under Article 9 of the Direc­ which are not included in the annex to the tive had not been fulfilled. Directive, which permits hunting, even though that law purports to oblige those authorities to respect both the Directive and the national legislative provisions? Such is the rather complex legal background to the present case, which comes to the Court by means of a question from an Italian court on the extent of the obligations which arise for the Member States to ensure that the condi­ tions under which exceptional derogations may be granted under Article 9 of the Direc­ 3. The Tribunale Amministrativo Regionale tive are respected. per il Veneto, Sezione II (Regional Adminis­ trative Court for the Veneto Region, Second Chamber) has referred the following ques­ tion to the Court:

This provision also purports to implement the Paris Convention of 18 October 4. Article 1(1) of Law No 157 of 11 Febru- 1950 (applied by Law No 812 of 24 Novem- ary 1992 on the protection of warm-blooded ber 1978) and the Bern Convention of wild fauna and on hunting 2 (hereinafter 19 September 1979 (applied by Law 'Law 157') declares that wild fauna are the N o 503 of 5 August 1981). inalienable heritage of the State, which are protected in the interests of the national and international community. Hunting activities are permitted in so far as they do not conflict with the requirements of the conservation of wild fauna or cause damage to agricultural 6. Article 18(1) lists the species which may production (Article 1(2)). By virtue of Arti- be hunted and lays down the dates of the cle 1(3), ordinary regions (regioni a statuto hunting seasons for different groups of spe- ordinario) 'shall adopt regulations governing cies; under Article 18(2), however, the the management and protection of all species regions may, after having consulted the of wild fauna in accordance with the present National Institute for Wild Fauna ('INFS'), law, international conventions and Commu- authorize modifications to the dates of the nity directives', while special regions (regioni hunting season for particular species, taking a statuto speciale) and autonomous provinces account of the environmental situation in the shall do so 'within the limits of their exclu- different localities, though they must respect sive powers as laid down by their respective the maximum duration of the season set by constitutions'. the preceding paragraph. New lists of species which may be hunted must be adopted within 60 days of the adoption of the Com- munity norm or the entry into force of inter- 2 — Supplemento Ordinano alla Gazzetta Ufficiale della Repub- blica Italiana No 46 of 25 February 1992, p. 3. national conventions, by a Presidential

7. Article 18(1) lists a number of species of wild birds which are not included in the list of bird species which may be hunted in accordance with the Directive. The list of such species is set out in Ministry of Agri­ 9. The Directive imposes a number of gen­ culture Circular No 3 of 29 January 1993, 3 eral obligations regarding the maintenance of which provides that these species may be population levels of protected species, and hunted only if the conditions and criteria the preservation, maintenance and established by the Directive are strictly re-establishment of their habitats (Arti­ respected, and that the regions and autono­ cles 2 and 3). Later provisions contain more mous provinces may only grant derogations specific obligations on the protection of under these conditions.

4 — In the interests of brevity, I will sacrifice accuracy by refer­ 3 — Cazzata Ufficiate della Repubblica Italiana No 38 o( ring throughout to 'Europe' rather than the 'European terri­ 16 February 1993, p. 37. tory of the Member States'.

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OPINION OF MR FENNELLY — CASE C-118/94

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ASSOCIAZIONE ITALIANA PER IL WWF AND OTHERS ν REGIONE VENETO

— the means, arrangements or methods submitted by WWF Italiana, the Federazione authorized for capture or killing, Italiana della Caccia (Italian Hunting Feder­ ation), an intervening party in the national proceedings, and the Commission. Thus the Court does not have the benefit of observa­ tions from the Italian Government or any — the conditions of risk and the circum­ other Italian public authority, including the stances of time and place under which defendant in the annulment proceedings such derogations may be granted, before the Italian court. The observations may be summarized as follows.

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O P I N I O N O F MR FENNELLY — CASE C-118/94

5 — Case 247/85 Commission ν Belgium [1987] ECR 3029. 6 — Case C-157/89 Commission ν Italy [1991] ECR I-57. 7 — Case C-339/87 Commission ν Netherlands [19901 ECR I- 8 — Gazzetta Ufficiale della Repubblica Italiana N o 76 of 851. 1 Aprii 1994, p. 39.

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ASSOCIAZIONE ITALIANA PER IL WWF A N D O T H E R S ν R E G I O N E VENETO

17. The Federation further notes that the provisions of Article 9 are so clear that Law 157 applies the Paris and Bern Conven­ the national court considers they have direct tions as well as the Directive, and that the effect, and hence no question of interpreta­ latter Convention contains rules which are tion can arise; the court itself affirms that the parallel with, and sometimes identical to, the legality of the calendar depends solely and Community measure. The Bern Convention exclusively on Article 18 of Law 157. authorizes — or does not prohibit, which is in effect the same thing — the hunting of nine of the twelve species excluded from Annex II to the Directive the hunting of which is allowed under Law 157; the Com­ munity has acceded to the Convention by 19. The Commission, which has initiated the 'Decision N o 82 of 3 December 1981', 9 procedure under Article 169 of the Treaty thereby implicitly, but significantly, endors­ against the Italian State in respect of ing lists of species of wild birds which may Law 157, takes issue with a number of the be hunted which are different from those set assumptions made by the national judge in out in Annexes II/1 and II/2 of the Direc­ the order for reference, concerning the legal tive. In transposing and implementing the effects of a directive which has been trans­ two supranational instruments, the Italian posed into national law, 10 the power of a State has thus complied almost entirely with national judge to decide to disapply a provi­ its obligations under Community and inter­ sion of national law inconsistent with a pro­ national law. vision of Community law, 11and the duty of Member States to transpose into national law even those provisions of a directive which are clear, precise and unconditional. 12 In the Commission's view, however, the Court can answer the question referred to it without taking account of the erroneous affirmations of the national judge.

national measures which exercise the right of of Article 9 in order to resolve the matters derogation must demonstrate that all the pending before him in the principal proceed- conditions laid down in Article 9(1) and (2) ings. At the oral hearing, the Federation also are fulfilled; simple administrative practices sought to rely on the Court's judgment of are not sufficient for correctly transposing 15 June 1995 in Žabala Erasun and Others. 14 these provisions. It adds one further, implicit, condition which is the natural cor- ollary of those which arise explicitly from the case-law of the Court, that any deroga- tion be limited in time. The Commission concludes by submitting that Arti- cle 9 requires that Member States only dele- 22. The matters raised by the Federation go gate the power to grant derogations to to the question of the jurisdiction of the domestic authorities where the powers of Court, rather than to the admissibility of the such authorities are properly defined and request for a preliminary ruling. The first where all the substantive and formal condi- question which arises, however, is whether tions imposed by the Directive are expressly the Federation is even entitled to challenge indicated. the jurisdiction of the Court or the admissi- bility of the question referred by the national court. It is settled case-law that, '[since] the right to determine the questions to be brought before the Court of Justice ... devolves upon the court or tribunal of the VI — Examination of the question submit- Member State alone, the parties may not ted to the Court change their tenor or have them declared to be without purpose ... Article 177 ... establish [es] a non-contentious procedure excluding any initiative of the parties, who are merely invited to be heard in the course of that pro- cedure'. 15 Parties to the main proceedings may not therefore challenge either the (i) Jurisdiction of the Court of Justice Court's jurisdiction to provide a preliminary ruling or the admissibility of such a ruling. 16

national provisions is in any case miscon­ determine, having regard to the particular ceived. The question of the national court, features of each case, both the need for a pre­ both in its terms and in its intent, requests liminary ruling to enable them to give judg­ the Court to provide an interpretation of ment and the relevance of the questions 21 Article 9 of the Directive, in circumstances which they refer to the Court'. where it is 'plainly apparent' that the inter­ pretation of the relevant Community provi­ sions has a 'bearing on the real situation fand] the subject-matter of the case in the main proceedings'. 17 In the present proceed­ ings, the national court might consider the 25. The Federation's reliance on Zabala Era- interpretation of the Directive necessary sun is also misplaced. While it is true that the either in order to interpret those provisions Court may examine the conditions in which of Law 157 which specifically refer to it, or a question has been referred to it in order to to evaluate the compatibility of this law with confirm its own jurisdiction, nothing in the the Directive; the national court is in any file of the present proceedings leads to the case required to interpret Law 157 in the conclusion that the case is no longer pending light of the Directive which it purports to before the national court, or that its ruling is implement. 1 8 While in the context of the not needed in the effective resolution of the present proceedings the Court cannot rule dispute before it. 2 2 It follows that, in my on the question of the compatibility with opinion, the present request for a prelimi­ Community law of national provisions, it nary ruling is admissible, and that the Court 'may provide the criteria for the interpreta­ has jurisdiction to provide the ruling tion of Community law which will enable requested. the national court to solve the legal problem with which it is faced'. 19

Giunta Regionale of the Veneto Region com­ precisely the same words in a specific, plies with the Directive, the national court express provision of national law; a general considers that the validity of the calendar can legal context may be sufficient if it actually only be evaluated as against the implement­ ensures the full application of the directive in ing measure, Law 157; in these circum­ a sufficiently clear and precise manner (see stances, the court is seeking to ascertain the judgment of 23 May 1985 in whether Law 157 correctly transposes the Case 29/84 Commission ν Federal Republic Directive. In order to provide the referring of Germany [1985] ECR 1661). However, a court with a useful answer, it is appropriate faithful transposition becomes particularly to examine more fully the extent of the obli­ important in a case such as this in which the gations of the Member States under the management of the common heritage is Directive in relation to the hunting of wild entrusted to the Member States in their birds, rather than restricting consideration to respective territories.' 2 3 the sole issue of the duty to give reasons. In the light of these elements of interpretation, the national court will be in a position to determine whether, and to what extent, Arti­ cle 9 of the Directive is relevant to the ques­ tion of the validity of the contested hunting calendar. 28. The Court has held that 'the national legislation must guarantee that the species of bird not listed in Annex II may not be hunt­ ed', and that national legislation which does not exclude the possibility that species other than those listed in Annex II to the Directive may be hunted 'creates a legally ambiguous situation' which is incompatible with the Member States' duties under the Directive. 2 4 27. In view of the range of arguments raised Furthermore, '[it] is clear from the general in the order for reference and by the parties, scheme of protection provided for in the it may be useful to recall the case-law of the Directive that national legislation may not Court on the general question of the trans­ extend the list contained in Annex II indicat­ position of the Directive. This has come ing the bird species which may be hunted'. 2 5 before the Court on a number of previous occasions, in the context of infringement actions by the Commission. The Court's finding on this matter in the first brace of such cases merits to be quoted in full:

of derogating from the prohibition on killing 30. The sets of conditions laid down by protected birds laid down by Article 5 and Article 9 are obviously cumulative, and, as from the restrictions on hunting established the article itself is a derogation from the pro­ by Article 7. Article 7 consists of a perma­ hibitions laid down in Articles 5 to 8, they nent derogation allowing the hunting of the must be strictly interpreted. The existence of listed species, subject to conditions regarding another satisfactory solution to the problem essentially the maintenance of their popula­ of air safety or crop protection, which might tion levels and their protection during partic­ otherwise justify recourse to Article 9, pre­ ularly sensitive periods of the year. The cludes any derogation under this provision; hunting of other species of wild birds can hunting for recreational purposes is also pre­ only be justified, in accordance with Arti­ cluded, as this is not amongst the reasons for cle 9 as has been definitively stated by the which a Member State may derogate from Court, if the following three conditions are these prohibitions. Furthermore, it is inher­ fulfilled: ent in the Court's analysis of this provision cited in the preceding paragraph that Arti­ cle 9(1) and (2) should be read together; the function of the formal conditions established by the latter is to enable strict supervision of the respect of the preconditions laid down by the former. It is clear from the same case- ' — first, the Member State must restrict the law that, while the Court will consider the derogation to cases in which there is no possibility that a national legislative provi­ other satisfactory solution; sion may be saved by Article 9, in any infringement proceedings it is incumbent on the Member State to submit evidence to demonstrate that the preconditions for bene­ fiting from such a derogation are fulfilled. 2 7 — secondly, the derogation must be based on at least one of the reasons listed exhaustively in Article 9(l)(a), (b) and (c);

judgments, where Member States have gener­ in order to derogate from these prohibitions ally attempted, largely without success, to must be embodied in specific national provi­ rely on this provision as a justification for sions. provisions of its national law which are prima facie in breach of the Directive. In Commission ν Germany, the Court consid­ ered national provisions which disapplied the prohibition inter alia on killing and captur­ ing protected birds and the destruction of their nests and eggs, where such acts took place in the course of 'the normal use of the land for agricultural, forestry or fishing pur­ poses' or 'the exploitation of the products obtained from such activities'; these deroga­ tions were found not to 'meet the require­ ments laid down in Article 9 of the Directive since [such] activities ... cannot be attributed to any of the reasons set out in Article 9'. 2 8 Similarly, in Commission ν Netherlands, the Court found that national provisions which allowed the owners or users of land to kill or capture protected birds which were liable to cause damage or a nuisance were incompati­ ble with Article 9(1), as 'the wording of [the 32. The transposition requirements do not, national provisions], unlike Article 9(1) of of course, stand in the way of a Member the Directive, [did] not make the grant of State's delegating implementing powers to permits conditional upon the absence of any regional or provincial authorities. It is settled other solution'. 2 9 In Commission ν France, case-law that 'each Member State is free to the Court ruled incompatible with the delegate powers to its domestic authorities as Directive national rules which failed to pro­ it considers fit and to implement directives tect the nests and eggs of certain species of by means of measures adopted by regional wild birds; as the French rules in question or local authorities. That division of powers did not specify the reasons justifying a dero­ does not, however, release it from the obliga­ gation or the criteria and conditions set out tion to ensure that the provisions of the in Article 9(2), they constituted a breach of directive are properly implemented in Article 5 of the Directive. 30 The Court has national law.' 3 2 The Court has recently had ruled that for a correct transposition of the occasion to underline that 'it is essential for Directive, both the prohibitions it imposes national law to guarantee that the national and the criteria the Member States must meet authorities will effectively apply the directive in full, that the legal position under national law should be sufficiently precise and clear, and that individuals are made fully aware of

their rights and, where appropriate, may rely Directive of national provisions under which upon them before the national courts'. 33 regional authorities were charged with implementing the Directive. Italian Law N o 968 of 1977 conferred on the regions the power to authorize the capture and the sale of migratory birds with a view to their being kept for use as live decoys or for recreational purposes. The Court pointed out that the Commission's complaint was 'not objecting to the power to regulate hunting conferred on the regions or to the legislative and 33. In the case of Law 157, while the regions administrative provisions adopted by the and autonomous provinces appear to be for­ regions'. 3 5 The Italian Government could mally obliged to respect the Directive in not, however, rely on Article 9 to justify the accordance with Article 1(3) and (4), the prima facie breach of the prohibitions laid terms of Article 18(1) of this law could have down by Article 5; as the relevant provision led these authorities to believe that the Ital­ of the national law did not establish the cri­ ian State had already determined, in relation teria and conditions provided for in Arti­ to those species and for the periods specified, cle 9(2) of the Directive, or require the that the conditions of Article 9 were already regions to take account of those criteria or fulfilled. In fact, the simple addition, without conditions, 'it introduce [d] an element of any explicit justification, of a number of pro­ uncertainty as regards the obligations which tected species to the list of those whose the regions must observe when adopting hunting is permitted under Article 7 and their regulations .... There is therefore no Annex II to the Directive tends to under­ guarantee that the capture of certain birds mine the claim that Law 157 is even to be will be limited to the strict minimum ... or considered a derogation. As noted above, that the means, arrangements or methods for hunting is not, itself, a ground for deroga­ capture are not large-scale, non-selective or tion. It would be a serious understatement to capable of causing the local disappearance of say that this creates 'a legally ambiguous sit­ a species. It follows that the essential ele­ uation', incompatible with the transposition ments of Article 9 of the Directive have not requirements of the Directive. been transposed completely, clearly and unequivocally into the Italian rules.' 3 6 In subsequent proceedings concerning the same national law, the Court held that 'it would be contrary to the principle of legal [certainty] if a Member State could rely on the regional authorities' power to issue regulations in order to justify national legislation which does not comply with the prohibitions laid

down in a directive'. 37 The reasoning of that 36. In my view, it follows from the scheme case, also concerning hunting derogations in of the Directive that a Member State which Italy, in application to the present case is, in opts to derogate by means of a provision of my view, compelling. national law and leave the adoption of imple- menting measures to regional or provincial authorities, may not seek to establish an exceptional derogation to permit hunting under Article 9 as if it were an integral part of the provisions allowing hunting under Article 7 of the Directive. As noted above, Article 7 does not require that any prior con- ditions be fulfilled, and allows the hunting of the species listed subject to certain minimum conditions which ensure the maintenance of the population of the particular species. The 35. The effects in Italian law of the Ministe- extent of the hunting which may be carried rial Circular of 29 January 1993, requiring out under the aegis of an Article 9 deroga- the regions and autonomous provinces only tion depends on the reasons for which the to grant derogations in accordance with the derogation is employed; it seems very likely Directive, are not a matter for this Court in to me, for example, that hunting justified for the present proceedings. It should be pointed reasons of air safety would be more out, however, that the proper transposition restricted geographically than, say, hunting of the conditions and criteria of Article justified by the need to avoid serious damage 9 requires any implementing provisions to to crops and livestock. Any national deroga- specify that a derogation is only available tion under Article 9 must be restricted to the 'where there is no other satisfactory solu- clear necessity of the occasion of its creation. tion', an essential precondition of which the circular makes no mention. Furthermore, it is clear that an administrative practice of a Member State which is itself in conformity with the Directive is not sufficient for proper compliance with the Directive; 38 on the other hand, the Court does accept that the national legislative provisions may be sup- plemented by other measures provided these are 'of a general nature and capable of creat- ing rights and obligations for individuals', and that the national authority empowered to adopt such measures in fact complies with the Directive. 39

39. At the oral hearing, the Federation relied on the fact that the Italian Government had notified the Commission on 12 August 1992 of the derogations which it wished to exercise on the basis of Article 9 of the Directive; the notification of a derogation 38. The Federation sought to rely on the does not, however, establish its conformity Bern Convention of 3 December 1981 on the with the substantive provisions of Arti­ conservation of European wildlife and natu­ cle 9(1) and (2). In any case, according to the ral habitats, approved on behalf of the Com­ Commission, Italy did not list Article 18 of munity by Council Decision 82/72/EEC, 4 0 Law 157 as being a derogation granted under and particularly on the fact that the Conven­ Article 9 in its report of October 1993 on the tion does not protect certain bird species the application of the Directive. 4 1 The Federa­ hunting of which is prohibited under the tion also referred to the Ministerial Circular Directive. In the first place, the fact that the of 23 January 1993 and Law No 50 adopted Convention does not apply to certain bird by the Veneto Region on 9 December species under threat does not dispense Mem­ 1993 to support its contention that the rele­ ber States from their obligations under the vant Italian texts have established the criteria Directive; a failure to ban hunting of these on the basis of which the Member States species is not equivalent to a permission to may derogate from the prohibitions laid authorize hunting. Furthermore, there is no down by the Directive. Not only does this indication in Council Decision 82/72/EEC contradict its assertion that Law 157 alone that the Community's approval of the Con­ constitutes the derogation, but it is difficult vention in any way modified the obligations to see how either of these measures could be of the Member States under the Directive, relevant to the validity of a decision adopted which was cited in the preamble to the on 21 July 1992. decision. Finally, as the Commission has noted, Article 12 of the Convention allows 41 — Notifications were however made in respect of nine of the twelve species listed in Article 18(1) (Second report on the application of Directive No 79/409/EC on the conservation of wild birds, COM(93) 572 final of 24 November 1993, 40 — Cited in footnote 9 above. p. 88).

40. Where a national court is faced with an 41. The existence of a rule of Italian law, to apparent contradiction between a measure of which the national judge has referred, which national law, or an administrative act would prevent his examining the compatibil­ adopted under a national provision imple­ ity with the Directive of Law 157 in the menting a Community directive, and the present proceedings, has been doubted by terms of the directive itself, it is not pre­ the Commission. Be that as it may, the case- vented by the existence of the national law of the Court has long established that implementing provisions from having regard 'any provision of a national legal system and to the provisions of the directive, as the any legislative, administrative or judicial national judge in the present case appears to practice which might impair the effectiveness believe. Equally, if the national court is of Community law by withholding from the unable to determine whether such a national national court having jurisdiction to apply measure or administrative act is in substan­ such law the power to do everything neces­ tive conformity with the directive, it is sary at the moment of its application to set required to verify the conformity of that aside national legislative provisions which measure or act with the terms of the direc­ might prevent ... Community rules from tive itself. Indeed, the court is obliged under having full force and effect are incompatible Articles 5 and 189 of the Treaty 'to take all with those requirements, which are the very appropriate measures, whether general or essence of Community law'. 4 4 It follows in particular, to ensure the fulfilment' of the my view that, in accordance with the obliga­ Member State's obligation to achieve the tions of the Italian State under the Treaty, the result envisaged by a particular directive; '[it] national judge in the present proceedings is follows that, in applying the national law and not only empowered but is obliged to verify in particular the provisions of a national law the conformity with the restrictive condi­ specifically introduced in order to implement tions of Article 9 of the Directive of the [the directive], national courts are required hunting calendar established by Decision to interpret their national law in the light of N o 4209 of the Giunta Regionale of the the wording and the purpose of the direc­ Veneto region, whether by interpreting the tive'. 4 2 This is so even where the directive relevant provision of Law 157 in conformity allows the Member State the possibility of with the Directive, or by disapplying any derogating from its provisions; in such cir­ provisions of this law which contradict the cumstances, 'it is the duty of the national Directive. court before which the directive is invoked to determine whether the disputed national measure falls outside the margin of the dis­ 43 — Case 51/76 Nederlandse Ondernemingen ν Inspecteur der Invoerrechten en Accijnzen [1977] ECR 113, para­ graph 29 of the judgment. 44 — Case C-213/89 Factortame and Others [1990] ECR I-2433, 42 — Case 14/83, loc. cit., footnote 18 above. paragraph 20 of the judgment.

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