C-149/94

JUDGMENT OF 8. 2.1996 — CASE C-149/94

J U D G M E N T O F THE C O U R T (Third Chamber) 8 February 1996 *

In Case C-149/94,

R E F E R E N C E to the Court under Article 177 of the EC Treaty by the Tribunal de Grande Instance, Caen (France) for a preliminary ruling in the criminal proceed- ings pending before that court against

Didier Vergy

on the interpretation of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1),

after considering the written observations submitted on behalf of:

— the French Government, by C. de Salins, Deputy Director in the Legal Affairs Department of the Ministry of Foreign Affairs, and J.-L. Falconi, Secretary of Foreign Affairs in that Department, acting as Agents,

— the Commission of the European Communities, by R. Wägenbaur, Principal Legal Adviser, and H . van der Woude, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Mr Vergy, represented by J. Delom de Mezerac, of the Caen Bar, of the French Government, represented by J.-M. Belorgey, Charge de Mission in the Legal Affairs Department of the Ministry of Foreign Affairs, acting as Agent, and of the Commission, represented by R. Wägenbaur and H . van der Woude, assisted by S. Bouche, Administrator, as an expert, at the hearing on 14 September 1995,

after hearing the Opinion of the Advocate General at the sitting on 26 October 1995,

2 Those questions were raised in criminal proceedings against Mr Vergy, who is charged with having, in 1992, at Landes-sur-Ajonc (France), offered for sale and sold a live specimen of a species of bird protected under French legislation.

3 It is common ground that the specimen in question was born and reared in cap- tivity.

4 Before the Tribunal de Grande Instance, Caen, Mr Vergy submitted that French legislation did not apply to such specimens and, if it did, it was contrary to the Directive.

5 Taking the view that the outcome of the criminal proceedings depended on the interpretation of the Directive, the national court decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

'(1) Must Council Directive 79/409/EEC of 2 April 1979, and particularly Articles 1, 2, 5 and 6 thereof, be interpreted as permitting a Member State to enact rules restricting or prohibiting trade in specimens belonging to a species which is not listed in the annexes to that Directive?

(2) Would the answer to the first question be any different by reason of the fact that the specimens of the species in question were born and reared in captivity or that the natural habitat of the species in question did not occur in the coun- try concerned?'

9 It is clear from those provisions that, as the Court held in Case 247/85 Commis- sion v Belgium [1987] ECR 3029, paragraphs 6 and 7, the Member States are under an obligation to impose a general prohibition on trade in all the species of natu- rally occurring birds in the wild state in the European territory of the Member

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States to which the Treaty applies, subject to the exceptions permitted in certain circumstances for the species listed in Annex III, and to the option to derogate provided for by Article 9.

10 It should therefore be stated in reply to the first question that the Directive requires the Member States to prohibit trade in specimens belonging to a species of bird which is not listed in the annexes thereto — in so far as the species concerned is a species of naturally occurring birds in the wild state in the European territory of the Member States to which the Treaty applies — subject to the option to der- ogate provided for by Article 9.

Question 2

u In so far as it may be relevant, it should be added that, since the Community leg- islature has taken no action with regard to trade in specimens of species of wild birds which have been born and reared in captivity, the Member States remain competent to regulate that trade, subject to Article 30 et seq. of the EC Treaty con- cerning products imported from other Member States.

is It should therefore be stated in reply to the first part of the second question referred by the national court that the Directive is not applicable to specimens of birds born and reared in captivity.

The second part of the question

16 As regards the second part of the second question, the Commission, the French Government and Mr Vergy maintain that each Member State is required to extend the protection prescribed by the Directive to species whose natural or usual habitat does not occur in the territory of that State, but which live in the wild in the Euro- pean territory of another Member State.

i7 In this respect, it should be pointed out that, as the Court stated in its judgment in Case 252/85 Commission v France [1988] ECR 2243, paragraph 15, the importance of complete and effective protection of wild birds throughout the Community,

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T H E C O U R T (Third Chamber)

in answer to the questions referred to it by the Tribunal de Grande Instance, Caen, by decision of 22 March 1994, hereby rules:

1. Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds requires the Member States t o prohibit trade in specimens belonging to

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VERGY

a species of bird which is not listed in the annexes thereto — in so far as the species concerned is a species of naturally occurring birds in the wild state in the European territory of the Member States to which the Treaty applies — subject to the option to derogate provided for by Article 9.

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