C-10/96

LRBPO AND AVES v REGION WALLONNE

OPINION OF ADVOCATE GENERAL FENNELLY delivered on 7 November 1996

1. The present request for a preliminary rul­ 1979, 3the Kingdom of Belgium entered a ing concerns the conditions under which a reservation in accordance with Article 9(1) Member State may benefit from a derogation thereof (which is largely identical in wording from the prohibition on the capture of birds to Article 9(1) of Council Directive in the wild, and in particular whether such a 79/409/EEC of 2 April 1979 on the conser­ derogation would be justified either where vation of wild birds; hereinafter 'the Direc­ 4 the immediate implementation of the prohi­ tive'), to the effect that 'the capture of birds bition would inconvenience some bird fanci­ for recreational purposes ... will continue in ers, or where there is a risk of consanguinity the Walloon region', albeit ostensibly 'with­ in captive bird populations. out prejudice to the Community provisions'.

I — Facts and national legislative back­ ground

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7 — Moniteur Belge of 18 September 1982, p. 10800. 9 — Case 247/85 Commission v Belgium, cited in footnote 5 above, paragraphs 36 to 43 of the judgment. 8 — It was suggested at the oral hearing that the number of cap­ ture licences granted was of the order of 50 000 in 1981 and 10 — Moniteur Belge of 29 September 1990, p. 18598. 20 000 or 30 000 in 1994; these figures arc not consistent 11 — Moniteur Belge of 1 October 1991, p. 21595 and 10 Octo­ with that set out in Article 7(2) of the Order of 28 July 1982. ber 1992, p. 21818 respectively.

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1993 and 1994. The report was also to evalu­ after the 'Brochier Report'). This concluded, ate the degree of difficulty of breeding cer­ inter alia, that: tain species of indigenous birds, to define the factors which would facilitate their repro­ duction in captivity and to assess the extent and distribution of facilities for breeding such birds in the Walloon region. To this end, the report was to study 283 couples in — the breeding in captivity of the seven spe­ 30 breeding facilities of variable quality, cies studied, as well as a number of other though including the most reputable facilities species whose capture was permitted in the Walloon region, in 1993; in 1994, the annually, was possible; study was to examine 71 couples in six good- quality breeding facilities and 74 couples in a pilot breeding facility subsidized by the Ministry of the Walloon region.

— the average rate of reproduction depends particularly on the conditions in which the birds are kept, the worst results being obtained where the mating couple is kept in a common aviary, as distinct from a box; 7. In what has been described as 'a signifi­ cant progress compared to the previous case- 12 law', the Conseil d'État suspended the application of the restocking Order of 16 September 1993, provisionally on 8 Octo­ ber 1993, and definitively on 14 October — the implementation of the technical rec­ 1993. The 1993 Order was annulled on 13 ommendations of the report would 27 May 1994. require a certain amount of time, as many bird fanciers would be obliged to change their installations and their habits, but these improvements would rapidly lead to an increase in the reproduction rate;

9. The conclusions of the Brochier Report Article 26: were not shared by the Conseil Supérieur Wallon de Conservation de la Nature (here­ inafter 'CSWCN'), which was consulted on the draft proposal which subsequently became the Order of 14 July 1994. In its interim opinion of 12 July 1994, it took the 'The capture of wild birds with a view to view that the techniques of breeding the spe­ making it possible for breeding alone to pro­ cies of birds whose capture was to be per­ vide a satisfactory solution shall be subject to mitted had long been mastered, and that authorization in accordance with the provi­ breeding in captivity, under proper condi­ sions of this chapter.' tions, was therefore a satisfactory solution for ensuring the replenishment of stocks. It also concluded that the imposition of a total ban on capture would have the effect of prompting bird fanciers to carry out the nec­ essary modifications to their installations in Article 27(1): order to ensure reproduction in appropriate conditions; the ensuing improved rate of reproduction using current stocks alone 14 would more than cover their requirements.

11. Article 32 of the Order sets the condi­ tions for obtaining a licence to capture; in '1 . Do Articles 5, 9 and 18 of Directive particular, the applicant must engage in the 79/409/EEC of 2 April 1979 on the breeding of birds, personally or through an conservation of wild birds allow a associate, and must have achieved an average 16 Member State to take account, on a renewal rate of one in the 36 months pre­ decreasing basis and over a specified ceding the submission of the application. In period, of the fact that the prohibition accordance with Article 73, these require­ of capturing birds for recreational pur­ ments are suspended for a transitional period poses would compel numerous fanciers from 1994 to 1997 inclusive; instead, the to alter their installations and to aban­ applicant must have, or have access to, the don certain habits where that State rec­ necessary breeding facilities as defined in ognizes that breeding is possible but is Annex XIV to the Order, and must respect not yet feasible on a large scale for that the guidelines established in that Annex. reason?

12. The application of the Order of 14 July 1994 was suspended by the Conseil d'État on 7 October 1994. The operation of a fur­ ther Order to similar effect of 13 October 1994 was suspended by the Conseil d'État 2. Do Articles 5, 9 and 18 of Directive on 14 October 1994. 79/409/EEC allow Member States, and if so to what extent, to authorize the capture of birds living naturally in the wild state within European territory with a view to obviating, in bird breed­ ing for recreational purposes, the prob­ 13. Considering the correct application of lems of consanguinity which would 17 Community law not to be so clear as to pre­ result from too many endogenous clude room for reasonable doubt, the Con­ crossings?' seil d'État has referred to the Court two very

16. Article 1 is complemented by Article 2, which reads as follows: 18. In particular, Article 5 requires the Member States to 'take the requisite mea­ sures to establish a general system of protec­ tion for all species of birds referred to in 'Member States shall take the requisite Article 1, prohibiting in particular ... [their] measures to maintain the population of the capture by any method' (Article 5(a)). species referred to in Article 1 at a level which corresponds in particular to ecologi­

18 — See Wils, 'The Birds Directive 15 years later: a survey of the case-law and a comparison with the habitats directive', 6 Journal of Environmental Law 220 (1994), and, more recently, Case C-149/94 Vergy [1996] ECR I-299, Case C-202/94 Van der Feesten [1996] ECR I-355, Case C-118/94 Associazione Italiana per il World Wildlife Fund and Others [1996] ECR I-1223, and Case C-44/95 Royal 19. In accordance with Article 9(1), Member Society for the Protection of Birds [1996] ECR I-3805. States may only derogate from the prohibi-

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tion on capturing birds laid down by 20. Article 9(2) provides that: Article 5:

'The derogations must specify:

— the authority empowered to declare that the required conditions obtain and to — for the protection of flora and fauna; decide what means, arrangements or methods may be used, within what limits and by whom,

(b) for the purposes of research and teach­ ing, of re-population, of re-introduction and for breeding necessary for these pur­ — the controls which will be carried out.' poses;

In accordance with Article 9(3), the Member (c) to permit, under strictly supervised con­ States must send a report on the imple­ ditions and on a selective basis, the cap­ mentation of this article to the Commission, ture, keeping or other judicious use of which 'shall at all times ensure that the con­ certain birds in small numbers.' sequences of these derogations are not

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sion. Moreover, the number of birds in the Wal­ loon region already taken from the wild, which they estimate at over half a million specimens, does not respect the requirement of 'small numbers' in Article 9(1)(c) of the Directive. On the first question

23. The applicants deny that 'psycho-social considerations' arising from the persistent resistance to the modification of habits unfavourable to breeding can prevent the adoption of a satisfactory solution in the

24. On the second question, the applicants produce scientific evidence to disprove the 19 — This organization is variously described in its own observa­ tions as the 'Fédération Royale Ornithologique Wallonne', the 'Federation Royale Ornithologique Beige' and the 'Fédération Ornithologique Wallonne'; the description used by the Conseil d'État is adopted here for convenience. 20 — Case 247/85, cited in footnote 5 above.

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existence of any danger of problems of con­ 26. The Commission considers, however, sanguinity. In particular, they note that bird that Article 9(1)(c) may be relied on to jus­ breeding is widely practised in a number of tify the capture of specimens in order to Member States where capture is completely ensure the input of new genes where the prohibited without such problems arising. danger of consanguinity is scientifically They conclude that breeding is a perfectly established, and where genetic diversity can­ feasible solution, and that recourse to cap­ not be guaranteed by the introduction of ture is not justified in accordance with specimens born and bred in captivity. Article 9.

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in the wild were not to be permitted; in par­ specimens of birds in the wild with a view to ticular, it quotes the Brochier Report in sup­ allowing the replenishment of stocks of cap­ port of its affirmation that Walloon breeders tive wild birds. Though it recognized in its are unable to produce a sufficient number in judgment in Commission v Belgium that the captivity of specimens of five species: the Order of the Walloon Regional Executive of 22 serin, goldfinch, bullfinch, chaffinch and 28 July 1982 'subjected] the people autho­ siskin. It adds that the Order of 14 July 1994 rized to capture and keep birds and the considerably reduces the number of species capture and keeping itself to strict rules and specimens which can be captured com­ and controls', the Court held that in order pared to previous Orders, as well as reducing to benefit from a derogation under the period of time so that capture may only Article 9(1 )(c) of the Directive, the national be effected after all the migratory and nesting provisions must 'guarantee ... that capture species of the Walloon region have already and keeping are restricted to cases in which migrated. there is no other satisfactory solution, in par- ticular the possibility that the bird species 2 concerned may reproduce in captivity'. 3

IV — Examination of the questions submit­ ted by the national court

reproductive situation of the species con­ in the interests of bird protection may have cerned'. to yield to other requirements; a derogation under this provision can therefore only be a last resort. In this context the term 'satisfac­ tory' may be interpreted as meaning a solu­ tion which resolves the particular problem facing the national authorities, and which at the same time respects as far as possible the prohibitions laid down in the Directive; a 32. No derogation from the prohibition on derogation may only be allowed where no capture is, however, permissible in the pres­ other solution which does not involve setting ence of any other satisfactory solution. aside these prohibitions can be adopted. Article 9(1)(a) identifies a small number of public interests which can override that of protecting wild birds, while the activities permitted by Article 9(1)(b) contribute in the long run to that protection and therefore jus­ tify recourse to a derogation. Article 9(1)(c) is slightly different in character, in that it does not, unlike the other two subpara­ graphs, identify the concrete problem or 34. In the present case, the problem facing conservation activity for which a derogation the authorities in the Walloon region is the may be necessary, but allows a derogation to necessity to maintain stocks of wild birds the prohibition on the capture of birds, held in captivity. It appears from the terms where their 'capture, keeping or other judi­ of the first question that the Order is cious use' is necessary in order to allow the founded on the idea that 'breeding is pos­ pursuit of certain activities not in themselves sible', but is not 'satisfactory' because it incompatible with the Directive; the more would require bird fanciers to change their restrictive conditions of this subparagraph installations and habits. Thus the legislator ('under strictly supervised conditions and on explicitly recognizes that breeding in captiv­ a selective basis', 'judicious use', 'in small 2 ity is a satisfactory solution, 6but, like numbers') may be said to compensate for the St Augustine, seeks to postpone embracing absence of the necessity to found the deroga­ virtue to a later date. tion on one of the listed public interest con­ siderations.

strictly interpreted. Thus in Commission v required to amend their behaviour in pursuit Belgium, it held that 'the precise formal con­ of a general good; in this case, the abolition, ditions set out in Article 9(2) ... are intended as a consequence of the Directive, of 'tende- to limit derogations to what is strictly neces- rie' or 'the capture of birds for recreational sary and to enable the Commission to super­ purposes', which Belgium sought so stoutly vise them ... [the derogation facility] must be to defend in ratifying the Bern Convention, applied appropriately in order to deal with is one example. That such activities may be precise requirements and specific situa­ 'ancestral' or partake of an 'historical and 27 tions'. Like the formal requirements of cultural tradition' does not suffice to justify a 28 Article 9(2), the provisions of Article 9(1) derogation from the Directive. seek to limit derogations to 'what is strictly necessary'. The Commission is therefore right, in my view, to argue that the necessity to replenish bird stocks should not be evalu­ ated at the level of the breeders considered individually, but having regard to the total captive wild bird population in the Member State concerned; allowing individual breeders to take birds from the wild where other sources are available would not be strictly necessary and would therefore not respect the exceptional character of the derogation allowed under Article 9.

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38. In my view, the practical difficulties Community, a derogation would only be identified by the national court in its first justified in such circumstances on the basis question are in principle not such as to jus of an objective demonstration of the grounds tify resorting to a solution other than that of on which other prima facie satisfactory solu breeding birds, any more than 'provisions, tions cannot be adopted. practices or circumstances existing in [a Member State's] internal legal system .

14 July 1994. On the one hand, the Order reject Belgium's defence based on this provi recognizes explicitly that the breeding of sion. A Member State cannot rely on its own wild birds in captivity is possible, and failure over many years to implement a sat includes a number of provisions to encour isfactory solution in order to claim that such age this activity; in particular, only those a solution would not, at present, solve the who respect the guidelines for breeding set particular problem it is facing as a result of out in Annex XIV to the Order (for the that failure. years 1994 to 1997), or who have a proven record of successful breeding (after the tran sitional period), will be entitled to a licence 30 - Case C-236/95 Commission v Greece (1996] ECR I-4459, to capture. On the other hand, it follows paragraph 18 of the judgment. from the Brochier Report that successful 31 - Case 247/85, cited in footnote 5 above, paragraph 41 of the judgment, emphasis added. breeders will not need to capture birds from

the wild in order to maintain their stocks, 42. The contested provisions in the present and the implementation of the Report's rec­ case in effect beg the question as to whether ommendations should lead to a rapid the imposition of breeding requirements increase in the renewal rate of the bird popu­ would provide an immediate solution to the lations concerned. Thus capture licences may problem of maintaining stocks of captive only be given to those who do not, in prin­ wild birds. In my view, the proper approach ciple, need to capture birds in the wild to would be to adopt first a solution which is in renew their birds stocks. conformity with the Directive, particularly one which has been shown to be satisfactory in other parts of the Community, and only to resort to a derogation if and when it can be shown that the original problem persists. I might add that subjecting the grant of cap­ ture licences to respect for breeding require­ ments is far from being the only solution which can be envisaged. The Commission has suggested that breeders could be encour­ aged to cooperate with each other, and indeed the interveners, in their submissions 41. Nor is it clear why a transitional period to the Conseil d'État of 15 December 1994, of a minimum of five years (and no maxi­ noted that Walloon bird fanciers had mum) has already been determined in acquired their stocks of serin in free advance; the CSWCN has noted in its opin­ exchanges of specimens with their Flemish ion that the fixing of a capture quota five counterparts. These avenues remain to be years in advance was in any case not scien­ explored before it can conclusively be deter­ tifically justified, and did not ensure that the mined that capture in the wild is justified. criterion of 'small numbers' was respected 32 from one year to the next. If the adoption of proper breeding practices can provide a satisfactory solution within a lesser period to the problem of the maintenance of the stocks of wild birds in captivity, the practice of cap­ ture will have lost its raison d'être, and in particular any justification under Article 9 to which it might otherwise pretend. Further­ more, as a derogation must be restricted 'to what is strictly necessary', the criterion of 'small numbers' imposed by Article 9(1 )(c) must be considered an upper limit rather 43. The first question should therefore be than a generally applicable norm; this provi­ answered to the effect that, in circumstances sion does not, therefore, permit the fixing of such as those described in the order for ref­ capture quotas in advance for a five-year erence, the fact that the application of the period, without regard to what is 'strictly prohibition on capturing birds would com­ necessary' in a given year. pel numerous fanciers to alter their installa­ tions and to abandon certain habits may not be taken as establishing the absence of another satisfactory solution, so as to justify 32 — Opinion of 12 July 1994, cited in footnote 14 above, sec­ tion 2. recourse to a derogation.

45. The Directive does not seek to protect specimens of birds born and reared in captiv­ 3 ity, as the Court held in Vergy. 3 It follows that any derogation from the prohibition on 47. It should also be recalled in this regard capture in the wild motivated by the risk of that 'the criteria which the Member State consanguinity in captive bird stocks could must meet in order to derogate from the only be justified in accordance with prohibitions laid down in the directive must Article 9(1)(c) of the Directive, as a 'judi­ be reproduced in specific national provi­ cious use' and only in 'small numbers'; as the sions', as the Court has consistently held, Directive docs not prohibit the breeding of most recently in Associazione Italiana per il 36 wild birds in captivity, ancillary activities, World Wildlife Fund and Others. It fol­ such as capture to avoid consanguinity, lows that capture for the avoidance of con­ which arc strictly necessary for such breed­ sanguinity would only be justified if it were ing may in principle qualify as a 'judicious expressly provided for, and strictly limited in use'. accordance with Article 9, in the relevant legislative provisions in force in the Member State. The task of ascertaining whether the national provisions in question satisfy this requirement is clearly one within the pur­ view of the referring court.

46. As with capture for replenishment of stocks, recourse to a derogation in order to 34 The CSWCN took the view in its opinion that the number avoid problems of consanguinity is condi­ of birds born in captivity of the most popular species in question was already more than sufficient to avoid any risk tional on the absence of any other satisfac­ of consanguinity ( Annex B to its opinion of 12 July 1994. cited in footnote 14 above); the Brochier Report did not consider this question . 35 — See paragraph 31 above. 36 — Case C 118/94. cited in footnote 18 above, paragraph 22 of 33 - Case C 149/94, loc- cil ., footnote 18 above. the judgment .

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