C-159/99

COMMISSION V ITALY

OPINION OF ADVOCATE GENERAL LÉGER delivered on 15 February 2001 1

1. In the present action, the Commission of — by providing that those rules are to the European Communities (hereinafter apply by way of a general and perma- 'the Commission') is seeking a declaration nent derogation, and that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Articles 5, 7 and 9 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, 2 and with Annex II thereto, the — by failing to transpose the provisions of Italian Republic has failed to fulfil its Article 9(1)(a) and (b) of the directive. obligations under that directive.

I — Relevant provisions 2. In support of its action, the Commission maintains that the Italian Republic has infringed the provisions of Articles 5, 7 and 9 of the birds directive and Annex II thereto: A — The birds directive

3. The immediate aim of the birds direc- tive, as stated in Article 1(1) thereof, is 'the — by laying down rules permitting the conservation of all species of naturally capture of birds of the species Passer occurring birds in the wild state in the italiae, Passer montanus and Sturnus European territory of the Member States'. 4 vulgaris 3to be sold for use as decoys To that end, it introduces rules for the and the keeping of those species; protection, management and control of those species. It also lays down rules for their exploitation. 1 — Original language: French. 2 — OJ L 1979 103, p. 1 (otherwise referred to as 'the birds directive). 3 — Otherwise referred to as the 'species at issue'. 4 — Hereinafter 'the protected species'.

— the conditions of risk and the circum- stances of time and place under which such derogations may be granted,

(a) in the interests of public safety and health, and of air safety, to prevent serious damage to agriculture and for — the authority empowered to declare the protection of flora and fauna; that the required conditions obtain and

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to decide what means, arrangements or 10. Article 1(3) provides that the ordinary methods may be used, within what status regions 'shall prescribe provisions to limits and by whom, govern the management and protection of all species of wild fauna in accordance with this Law, international agreements and Community directives'. The article pro- vides that the special status regions and autonomous provinces shall be subject to this requirement 'within the bounds of their — the controls which will be carried out'. exclusive powers as set out in their indivi- dual constitutions'.

8. Article 18(1) of the directive states that 'Member states shall bring into force the laws, regulations and administrative provi- 11. Article 2(3) of Law No 157/92 pro- sions necessary to comply with this direc- vides that 'control of population levels of tive within two years of its notification'. birds at airports shall be entrusted to the Minister for Transport'.

15. Article 19(2) of Law No 157/92 states that it is for the regions to exercise control The Prime Ministerial Decree of 21 March of the species of wild fauna, including in 1997 8 areas where hunting is prohibited, for the purpose of attaining the following objec- tives: improvement in management of the zoological heritage, protection of the soil, health reasons, biological selection, protec- tion of the historical and artistic heritage 17. To comply with the requirements of and protection of animal, agricultural and Annex II to the birds directive, the decree forestry products and of fish reserves. Such of 21 March 1997 amended Article 18 of control must be carried out on a selective Law No 157/92, by excluding the species basis and, in general, with the use of Passer italiae, 9Passer montanus, 10 Passer ecological methods. If the Istituto Nazio- nale per la Fauna Selvatica 6 finds that the control methods are ineffective, the regions 7 — GURI No 38, of 16 February 1993 (hereinafter 'Circular may give authority for schemes for killing 3/93'). 8 — GURI No 98, of 29 April 1997 (hereinafter 'the decree of 21 March 1997'). 9 — Italian sparrow. 6 — National Wild Fauna Institute (hereinafter 'the INFS'). 10 — Tree sparrow.

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The attention of the administrations to whom this circular is sent must therefore be Decree of 27 September 1997 13

11 — Starling. 13 — GURI No 254, of 30 October 1997 (hereinafter 'the 12 — Hereinafter 'the INFS circular letter'. decree of 27 September 1997').

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19. This decree was adopted by the Prime — the means, arrangements or methods Minister. Under Article 1(1), it defines the authorised for capture or... killing, detailed rules for granting a derogation as provided in Article 9(l)(c) of the birds directive.

— the times and places for exercise of the derogation, 20. Article 2 of the decree provides that 'the regions in agreement with the Minis- ters for the Environment and for Agricul- tural Policies shall adopt the derogations provided in Article 1 of the present decree, identifying: — the time at which the derogation ceases to operate,

22. Article 4 of the decree of 27 September Circular 3/93 — did not meet the require- 1997 states that the INFS is the authority ments set out in the directive for the system empowered under Article 9 of the birds of derogations from the prohibitions on directive to declare that the required con- hunting, keeping and capture. ditions obtain.

23. Concerning the derogations provided 26. On 30 November 1993, in accordance in Article 9(1)(a) and (b) of the directive, with Article 169 of the EC Treaty (now the preamble to the decree of 27 September Article 226 EC), the Commission sent the 1997 states that these are governed by the Italian Government a letter of formal third paragraph of Article 2 and by Arti- notice setting out its objections and inviting cle 19 of Law No 157/92. it to submit its observations within two months.

24. Following actions brought by certain regions, the Corte Costituzionale (Consti- 27. On 21 March 1997, the Italian autho- tutional Court) annulled the decree of rities sent the Commission a copy of a letter 27 September 1997 in Decision No 169 of of 4 March 1997 from the Ministry of 14 May 1999. Agricultural, Food and Forestry Resources announcing the imminent adoption of reg- ulations to comply with the obligations imposed by the birds directive. On 29 May 1997, the Italian Government transmitted the text of the decree of 21 March 1997, amending Article 18 of Law No 157/92 by II — Procedure removing nine species of birds from the list of species that might be hunted in Italy.

A — Pre-litigation procedure 28. On 7 August 1997, considering that the measures adopted by the Italian autho- rities were inadequate, the Commission 25. After examining the Italian legislation, sent the Italian Government a reasoned the Commission took the view that Law opinion stating its reasons for maintaining No 157/92 permitted the hunting, the cap- its objections concerning the non-fulfilment ture for sale as decoys and the keeping of by Articles 4 and 5 of Law No 157/92 of species of birds which, under the birds the obligations laid down in the birds directive, should have been protected, and directive. It also stated that the rules in that the Italian legislation — specifically force in Italy on the application of deroga-

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with the requirements under Article 9 objects that it has infringed Articles 5, 7 thereof, in particular as regards the and 9 of the birds directive and Annex II reasons for derogation, listed in Arti- thereto. Second, it claims that it has not cle 9(l)(a) and (b); fully transposed the provisions of Article 9 of the birds directive.

Order the Italian Republic to pay the costs of the proceedings.'

A — The first plea

34. The Italian Government claims that the Court should: 36. This plea divides into two heads. Under the first head, the Commission considers that, by allowing three protected species to be captured as decoys and to be kept, the 'Declare the second objection set out in the Italian Government has infringed Articles 5 application inadmissible; and 7 of the birds directive. Furthermore, under the second head of this plea, the Commission claims that the Italian Gov- ernment has introduced rules on derogating from the hunting prohibitions set out in the — dismiss the remainder of the applica- birds directive which are contrary to Arti- tion; cle 9 of that directive.

38. The Commission finds it equally clear from Article 4(4) and Article 5(2) of Law No 157/92 that those species may be captured for sale as decoys. Similarly, those same national provisions show that the (b) Assessment keeping of those three protected species is authorised.

39. It is therefore clear that the provisions 42. Articles 5 and 7 of the birds directive of the Italian legislation are incompatible expressly state that the hunting, capture with Articles 5 and 7 of the birds directive. and keeping of specimens of species not shown in Annex II to the directive are prohibited. The species Passer italiae, Pas- ser montanus and Sturnus vulgaris are not shown among those that may be killed, captured or kept in Italy. 40. The Italian Government acknowledges that the birds directive prohibits the hunt- ing, capturing for sale and keeping of the three species in dispute within Italy. How- ever, it claims in essence that the Italian legislation does meet the requirements of the birds directive.

43. The very wording of Article 4(4) of Law No 157/92 shows that the capture for sale as decoys of specimens of those three species is authorised in Italy. Similarly, 41. According to the Italian Government, Article 5(2) of Law No 157/92 permits in prohibiting the hunting of those species, the regions to make rules on the detailed the decree of 21 March 1997 also impli- arrangements for keeping specimens of

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those three species intended for use as directive in a sufficiently clear and precise decoys. manner, faithful transposition becomes par- ticularly important in a case such as this in which the management of the common heritage is entrusted to the Member States in their respective territories'. 15

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First plea (second head) the activity pursued and determines how long it is to last. After adoption of the decree of 21 March 1997, the institution took timely action, in the INFS circular letter, to give the administrations concerned the instructions needed for the species (a) Observations of the parties Passer italiae, Passer montanus and Sturnus vulgaris, already excluded from the list of species that might be hunted, to be exclu- ded from capture for use as decoys.

49. The Commission maintains that the Italian legislation, in particular Article 3 of the decree of 27 September 1997, in con- junction with Article 4(4) of Law (b) Assessment No 157/92, permits general and permanent derogation from the prohibitions laid down by the birds directive, particularly in Arti- cle 5(a), whereas the arrangements for derogating from the prohibitions on hunt- 53. I accept the Commission's analysis. I ing, established by Article 9 of the direc- believe the Italian legislation does not tive, do not authorise that. comply with the requirements of clarity, precision and accuracy imposed by the case-law of the Court.

50. The Italian Government disputes that analysis. It claims that the Italian legisla- tion organises the activity of capture in a 54. The Court has invariably held that precise manner, under the direct control of 'with regard to the conservation of wild public bodies and authorities. birds, the criteria which the Member States must meet in order to derogate from the prohibitions laid down in the directive must be reproduced in specific national provi- sions'. 16 51. Thus a hunter with an interest in using birds as decoys could never capture them himself, but would have to acquire them from bodies specifically set up and with exclusive authority to capture. 55. Similarly, the Court has repeatedly held that 'national legislation which authorises the hunting of certain species of birds not

59. This inconsistency also produces marked consequences as regards legal cer- 57. By wording Article 3 of the decree of tainty: how is one to interpret and reconcile 27 September 1997 in the way it has, the Article 4(4) of the Law and Article 3 of the Italian legislature has not clarified the legal decree? Does one have to believe that position which existed up to then, 18 for the capturing protected species for sale as article provides that the detailed rules for decoys is what the ordinary law provides, applying the derogation arrangements laid as seems to be suggested by Article 4(4) of down in Article 9(1 )(c) of the birds direc- the Law, or, on the other hand, does one tive also relate to Article 4(4) of Law have to regard Article 3 of the decree as a No 157/92. provision which lays down rules on dero- gation applying only where there is a need to allow — selectively and in strictly con- trolled conditions — the capture, keeping and any other judicious exploitation of certain birds in small quantities? If it is the 58. As has been seen, however, Article 4(4) second interpretation that must prevail, as of Law No 157/92 does not lay down a the Italian Government indicates, it must derogation in accordance with Article 9 of be noted that the Italian rules do not meet the birds directive. In other words, Arti- the requirements of Article 9 of the direc- tive, particularly as regards identification of the authority empowered to establish the 17 — See, in particular, the judgment in Associazione Italiami terms for applying the derogation and to per il WWF and Others, paragraph 25. 18 — I should recall that, prior to adoption of this decree, the ensure that the means, arrangements and Italian Government had introduced a similar measure methods used are appropriate to the pur- contra legem by way or circulars (see points 16 and 18 of this Opinion). pose intended and that the use of such

B — The second plea

64. Like the Commission, I believe that the (a) Observations of the parties objection of inadmissibility raised by the Italian Republic is unfounded and must be rejected.

62. Essentially, the Commission maintains that the Italian Republic has failed to

65. The Court has consistently held that 19 — On this, see the Italian Government's written response to the questions of the Court. the purpose of the pre-litigation stage of the

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The authorities empowered under Arti- 67. It should be noted that the objection cle 9(2) of the abovementioned directive based on improper transposition of Arti- must also see whether there is any other cle 9 of the birds directive, made by the satisfactory solution that makes it possible Commission in its application, was not to resolve the particular problem without only contained in the additional reasoned the need to authorise a derogation.' opinion but had already been expressed briefly and generally in the formal letter of notice of 30 November 1993. In that letter, the Commission expressly referred to some

20 — On these various points, see in particular the judgment in 68. I consider that the beginning of that Case C-96/95 Commission v Germany [1997] ECU passage ('To that it should be added') I-1653, paragraphs 22 and 23. 21 — See, in particular, the judgment in Case C-279/94 Com- shows that the Commission intended to mission v Italy 11997] LCR I-4743, paragraphs 14 and 15. state an objection differing from that set

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out earlier in the same document. Likewise, And, lastly, in its letter replying to the the wording of this passage shows explicitly reasoned opinion of 7 August 1997, the that the Commission intended to refer to a Italian Government presented the adoption more general matter than the possibility of of the decree of 27 September 1997 as a hunting and capturing certain species not- measure intended to adapt the national law withstanding the provisions of the direc- in order to take account of the objection tive, meaning the wider matter of the relating to the general problem of the detailed rules for applying the derogations inadequate transposition of Article 9 of provided in Article 9 and of seeing whether the birds directive. there were any solutions other than a derogation.

Substance 70. Thus, by letter of 21 March 1997, in reply to the formal letter of notice, the Italian authorities communicated the final version of a regulatory instrument intended to resolve the specific matter of the possi- bility of hunting the protected species and also announced the forthcoming adoption 72. The Court has consistently held that of a general instrument to transpose Arti- 'the possibility provided for in Article 9 of cle 9 of the birds directive. The Italian derogating from the restrictions on hunt- authorities then acknowledged that the ing, as well as from the other restrictions matter of transposing Article 9 was an and prohibitions contained in Articles 5, 6 objection which had been voiced long since and 8 of the directive, is subject to three when, in the third paragraph of that letter, conditions. First, the Member State must they state that 'this instrument of guidance restrict the derogation to cases in which puts an end to the objection voiced against there is no other satisfactory solution. us long ago by the European Commission Secondly, the derogation must be based for improperly transposing Article 9 of on at least one of the reasons listed Directive 79/409 regarding derogations'. exhaustively in Article 9(1)(a), (b) and (c).

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Thirdly, the derogation must comply with ments introduced relate only to the situa- the precise formal conditions set out in tion envisaged by Article 9(c). Article 9(2), which are intended to limit derogations to what is strictly necessary and to enable the Commission to supervise them. Although Article 9 therefore authorises wide derogations from the gen- eral system of protection, it must be applied 76. According to the preamble to that appropriately in order to deal with precise decree, the derogations laid down in Arti- requirements and specific situations'. 22 cle 9(a) and (b) of the birds directive are governed by the third paragraph of Arti- cle 2 and by Article 19 of Law No 157/92.

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Conclusion

81. I therefore propose that the Court should:

(1) Declare that:

— by laying down rules permitting the capture and keeping of three species (Passer italiae, Passer montanus and Sturnus vulgaris), contrary to Articles 5 and 7 of, and of Annex II to, Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, and by providing that those rules are to apply by way of a general and permanent derogation, which is contrary to Article 9 of that directive, and