C-38/99

COMMISSION V FRANCE

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 14 September 2000 *

Introduction environment and of animal species, which are regarded as a common heritage to be preserved and shared with future genera- tions.

1. In this case the Commission alleges that the French Republic has failed to fulfil its obligations under Council Directive 79/409/EEC of 2 April 1979 on the con- servation of wild birds (hereinafter 'the The Spanish philosopher José Ortega y Directive'). 1 Gasset maintained that 'a love of hunting is part of the human condition and springs from the deepest recesses of Man's being', 2 and went on to say that 'young people's fondness for hunting and thoughts of love have, together, fuelled the whole process of The application, which sets out four pleas what has been called civilisation.' 3 in law, refers to failure to transpose the 'principle of complete protection' laid down in the Directive, infringement of the Directive by the adoption of particular opening and closing dates for the hunting season, and failure to communicate infor- The very varied interests which converge in mation relating to the departments of the sphere of hunting cause inevitable Lower Rhine, Upper Rhine and Moselle, conflicts which the law seeks to resolve. which have a special system of adminis- trative law.

3. In France, hunting law has a historical and political dimension which gives it particular characteristics. Indeed, hunting 2. Hunting is an extremely important activ- law was, during the Revolution towards the ity, not only for those who practise it, but end of the eighteenth century, the subject of because it affects proprietary rights, per- debate between people, such as Mirabeau, sonal safety and the conservation of the

Even so, the prohibitions are not absolute: the measure as a whole seeks to achieve what it calls the 'natural balances between species as far as is reasonably possible' (eighth recital), by recommending that the Directive 79/409 stringency of the conservation measures be adapted 'to the particular situation of the various species' (seventh recital) and to the 'specific conditions obtaining in the differ- ent regions' (tenth recital), and by agreeing 5. The immediate objective of Directive to some forms of 'acceptable exploitation' 79/409 is 'the conservation of all species of certain species, 'compatible with main- of naturally occurring birds in the wild tenance of the population of these species state in the European territory of the at a satisfactory level' (eleventh recital). Member States' (Article 1(1)). Adopted on

4 — The first situation derived from a Decree issued by the Constituent Assembly on 2 August 1789, which established the principle that 'any landowner may shoot any kind of game, but only on his own land'. 5 — Cassia, P. and Saulnier, E.: La loi du 3 juillet 1998 sur la ebasse et le droit communautaire: error communis facit ius?, For those reasons Article 2, in an endea- Revue Europe, July 1999, pp. 5-8. vour to respond to the various concerns, I - 10944

COMMISSION V FRANCE

requires that the protective measures to be all relevant information on the practical adopted by the Member States should be application of their hunting regulations.'6 'at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of eco- nomic and recreational requirements'.

I - 10945

OPINION OF MR RUIZ-JARABO — CASE C-38/99

Of the grounds on which the Commission's tratif (Administrative Court), Nantes, action was declared well founded, I think it wished to ascertain whether it was possible useful to highlight the content of para- to fix the closing date for the hunting of graph 14: migratory birds and waterfowl by reference to the varying times of the commencement of migration. The Court of Justice recalled the principles laid down in the judgment in Commission v Italy and concluded as '... it must be pointed out that the second follows: and third sentences of Article 7(4) of the Directive are designed to secure a complete system of protection in the periods during which the survival of wild birds is particu- larly under threat. Consequently, protec- '... the closing date for the hunting of tion against hunting activities cannot be migratory birds and waterfowl must be confined to the majority of the birds of a fixed in accordance with a method which given species, as determined by average guarantees complete protection of those reproductive cycles and migratory move- species during the period of pre-mating ments. It would be incompatible with the migration and..., as a result, methods objectives of the Directive if, in situations whose object or effect is to allow a certain characterised by prolonged dependence of percentage of the birds of a species to the fledglings on the parents and early escape such protection do not comply with migration, part of the population of a given that provision.' 9 species should fall outside the protection laid down.'

In the circumstances, the Court gave this 12. Article L.224-2 of the Code Rural reply: (Rural Code), in the version thereof result- ing from Law No 94-591 of 15 July 1994 (hereinafter 'the Law of 1994'), empow- ered the Administration to fix the opening dates for the hunting of waterfowl and '... The national authorities are not empow- migratory birds (the category which corre- ered by the Directive to fix closing dates for sponds to that of 'migratory birds' used in the hunting season which vary according to the Directive), without imposing any criter- the species of bird, unless the Member State ion or restriction in that regard. The concerned can adduce evidence, based on general close season for hunting ended, scientific and technical data relevant to depending on the region, on a specified each individual case, that staggering the Sunday in September (Article 224-4 of the closing dates for hunting does not impede Rural Code), while the specific date for the complete protection of the species of migratory birds was not, in principle, to be bird liable to be affected by such stagger- earlier (Article 224-5 of the Rural Code), 11 ing.' 10 unless the Minister with responsibility for hunting ruled otherwise (Article 224-6 of the Rural Code). Thus, for example, on 29 May 1997, the Minister for the Envir- onment adopted various orders designed to give early authorisation for the hunting of The third question on which a preliminary waterfowl in 68 departments (hereinafter ruling was sought is not pertinent to the 'the Ministerial Orders of 1997'). present case.

(b) the dates fixed for the opening of the hunting season are too early;

With regard to closing dates, the Law of 1998 retains, in essence, the staggered system already in force, although it abol- ishes the power of the administration to bring them forward. (c) the dates fixed for the close of the hunting season are too late;

The action for failure to fulfil obligations (d) there has been no communication of any provisions transposing the Direct- ive in relation to the departments of Lower Rhine, Upper Rhine and Moselle. 14. The Commission brought this action on 10 February 1999, after sending the relevant reasoned opinion to the French authorities on 5 August 1998, calling on them to adopt the requisite measures in order to comply with the provisions of the Directive. When the prescribed period 16. For clarity of presentation, I shall first elapsed two months later, the Commission's analyse pleas (b) and (c) together, then plea requirements had not been met. (d) and, lastly, plea (a). I - 10948

COMMISSION V FRANCE

Assessment of the application of State) of 11 May 1998 annulling a number of the Ministerial Orders of 1997 on the ground that, by opening the hunting season within periods and areas in which the various species had not yet completed their reproduction and rearing cycles, they were in breach of the objectives of the — The alleged failure to fulfil obligations Directive. by opening the hunting season too early and closing it too late

17. According to the Commission, the 19. With regard to the rules laid down in various French provisions regulating the the Law of 1998, the Commission consid- opening of the hunting season for migra- ers that these have served only to aggravate tory birds are contrary to the Directive France's failure to fulfil its obligations, since they do not take into account the ban since, although they do not make any on hunting during the nesting, reproduc- major substantive amendments, they tion and rearing periods, as laid down by replace a provision which was subject to Article 7(4). the Minister's discretion and of temporary scope with a mandatory and permanent rule which has the status of a law.

it is clear that the opening dates for the in the case of 12 of them, to do so by more hunting season given both in the Minister- than 20 days. The Law of 1998 does not ial Orders of 1997 and the Law of 1998 are introduce significant amendments in that designed to protect the populations of respect. migratory birds from suffering significant losses. However, as the Court of Justice stated in its judgment in Commission v Italy,12 'protection against hunting activ- ities cannot be confined to the majority of the birds of a given species.' 13 The Direc- tive does not recognise terms like 'signifi- 25. The French Government acknowledges cant reduction'; the protection it aims to from the outset that some of the closing achieve is complete protection. Therefore, dates fixed in accordance with the Laws of methods whose object or effect is to allow a 1994 and 1998 are open to challenge under certain percentage of the birds of a species Article 7(4) of the Directive. It contends, to fall outside such protection are contrary however, that they are based on the Ornis to the objectives of the Directive.14 method, which was adopted in April 1993 by the committee set up under Article 16 of the Directive ('the Ornis Committee') and published by the Commission on 24 November 1993. This method enables staggered closing dates to be fixed on the basis of two combined criteria: the state of 22. The plea that the dates fixed for the conservation of the species in question and opening of the hunting season are too early whether it migrates early or late. According should be upheld. to the French Government, the Ornis method accepts the possibility of an over- lap, provided that it does not affect a significant percentage of the members of a species.

As the Court of Justice recognised in the — The alleged failure to fulfil obligations APAS judgment, from the conservation by omitting to communicate the hunting point of view, as expressed in the Directive, season dates applicable in the departments the method of fixing staggered closing dates of Lower Rhine, Upper Rhine and Moselle entails two serious risks: the inevitable disturbances caused by hunting to other species of bird for which hunting has already closed and the risk that hunters may become confused between the differ- 29. The last sentence of Article 7(4) of the ent species when shooting them. In view of Directive imposes on the Member States these difficulties, the Court held that a the obligation to send the Commission all method such as that used in France was relevant information on the practical compatible with the Directive only if 'the application of their hunting regulations. Member State concerned can adduce evi- dence, based on scientific and technical data relevant to each individual case, that staggering the closing dates for hunting docs not impede the complete protection of the species of bird liable to be affected by such staggering.' The Commission alleges that it has not- received any communication in relation to those three French departments.

30. In relation to this plea, it need only be said that the French Government concedes However, since the evidence adduced by the that it did not communicate to the Com- French Government refers to protection mission — within the time-limit for which, as I have concluded, is not com- responding to the reasoned opinion — plete, it cannot be relied on to justify an the provisions applicable in the depart- exceptional case of the kind contemplated ments of Lower Rhine, Upper Rhine and by the Court in the aforementioned judg- Moselle which, it claims, are contained in ment. Article R.229-1 et seq. of the Rural Code.

32. In the preceding points I have reached That is the view taken by the French the conclusion that the French Republic has Government, which invokes in its support failed to fulfil its obligations under the the case-law embodied in various judg- second and third sentences of Article 7(4) ments, amongst them Case C-252/85 Com- of the Directive, since it has not fixed the mission v France,16 in which it was held dates of the hunting season for migratory that 'the transposition of Community le- birds in such a way as to guarantee their gislation into national law does not neces- complete protection during specific periods sarily require the relevant provisions to be in which they are particularly vulnerable. enacted in precisely the same words in a specific express legal provision; a general legal context may be sufficient if it actually ensures the full application of the Directive in a sufficiently clear and precise man- ner.' 17 33. As a separate plea, the Commission claims that France has not incorporated into its legislation the provisions contained in those two sentences of Article 7.

36. I am not convinced that, in the present case, the incorporation into French law of a 34. The French Government does not deny principle such as the one contained in that it has failed to do so. Article 7(4) of the Directive is a purely formal matter. To put it another way, I do not think it is possible to guarantee the full

15 — This is merely a phrase which serves to summarise the obligations laid down in Article 7(4) of the Directive. 35. It could be argued that the effectiveness 16 — Case C-252/85 [1988] ECR I-2243. of what I have been calling 'the principle of 17 — Paragraph 5.

38. The defendant, on the other hand, purports to prove the effectiveness of the

It is desirable that the uncertainty of the criteria for fixing the hunting season for 19 — See point 4 above. 20 — Commission v Italy, cited above, paragraph 9; Case 247/85 Commission v Belgium [1987] ECR 3029, paragraph 9; Case 236/85 [1987] ECR 3989, para- graph 5; and Commission v France, cited above, para- 18 — Paragraph 12. graph 5.

I - 10953

OPINION OF MR RUIZ-JARABO — CASE C-38/99

principle of complete protection in national ings by the defendant, which have held that law by reference to the litigation to which almost all the provisions of Article L.224-2 the issue of the compatibility of the Min- (2) of the Rural Code, as amended by the isterial Orders of 1997 and the Law of Law of 1998, are incompatible with the 1998 with the provisions of the Directive aim of conservation pursued by the Direct- has given rise in France. 21 ive.

39. To my mind, and without going into 41. I am pleased to note that the draft law the detail of those judgments, the very finally adopted by the National Assembly existence of the debate — which is in any on 28 June last amends Article L.224-2 to event not relevant here since the judgments include, amongst other provisions, the cited were given after expiry of the period following: 'Birds shall not be hunted during with which this case is concerned 22 — is the nesting period or during the various evidence of the legal uncertainty attribut- stages of reproduction and rearing. Fur- able to the French legislation and, indeed, thermore, migratory birds shall not be lends weight to the need for an express hunted during their return to their nesting enunciation in French law of the obliga- grounds.' tions laid down in Article 7(4) of the Directive.

I - 10955