C-182/02

3. The Conseil d'État granted the appli- cation to annul Article 1 of the contested The questions referred call specifically for legislation which fixed the opening and an examination of the role which the closing dates for hunting certain species Directive attributes to the cultural and (ducks, rails and coots, some limicolae, recreational activity that is hunting, and snipe, woodcock, water rail and scoter, and for guidance on whether, under Article 9 of turdidae ('canards, rallides et foulques, the Directive, that activity may be carried certains limicoles, les bécassines, les out even during periods when birds are bécasses des bois, les râles d'eau et les entitled to increased protection, namely, during rearing, reproduction or return migration, within the meaning of the terms 3 — The Association pour la protection des animaux sauvages (Association for the Protection of Wild Animals) and the used in Article 7(4) óf the Directive. Rassemblement des opposants à la chasse (Assembly of Opponents of Hunting). 4 — Journal officiel de la République française 2000 No 12178 of J August 2000. 1 — Original language: Spanish. 5 — The Union nationale des fédérations départementales de chasseurs (National Union of Departmental Hunting Feder- 2 — Council Directive 79/409/EEC of 2 April 1979 on the ations; 'the Hunting Union') and the Association nationale conservation of wild birds ('the Directive') (OJ 1979 L 103, des chasseurs de gibiers d'eau (National Association of p. 1). Waterfowl Hunters).

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An order of the Minister responsible for hunting... shall specify the conditions in which those activities may be authorised 6. The Directive lays down a number of and the procedures for the checks to be general obligations regarding the mainten- implemented. The Minister shall also deter- ance of the population levels of all species mine, by species,... the maximum number of protected birds and the preservation, of birds which may be taken in each maintenance and re-establishment of their department. habitats (Articles 2 and 3). Later provisions contain more specific obligations on the protection of endangered and migratory species (Article 4) and wild birds, and

Prefects shall establish... the maximum 6 — Second recital in the preamble to the Directive. number of birds which may be taken by 7 — Third recital in the preamble. the beneficiaries of the derogation.' 8 — Eighth recital in the preamble.

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prohibit the marketing of, and limit the — in the interests of air safety, hunting of, protected species (Articles 5 to 8).

7. Articles 5 to 7 allow the Member States — to prevent serious damage to crops, to authorise the hunting of the birds listed livestock, forests, fisheries and in Annex II to the Directive, provided that water, the conservation of such birds is not jeopardised as a result. 'Owing to their population level, geographical distribution and reproductive rate throughout the Com- munity' (Article 7(1)), hunting is prohibited during the rearing season and during the various stages of reproduction, or, in the case of migratory species, during the period of reproduction and during their return to their rearing grounds (Article 7(4)). — for the protection of flora and fauna;

— the means, arrangements or methods authorised for capture or killing, 11. In the opinion of the League, the applicant in the main proceedings, and of the parties which support its claims, Article 9(1) of the Directive must be con- — the conditions of risk and the circum- strued so as to exclude hunting during the stances of time and place under which period of special protection. The League such derogations may be granted, contends that such an activity can never constitute 'judicious use' because other satisfactory solutions exist. However, if the activity is permitted, it must be subject to very strict conditions, a requirement which the French legislation does not fulfil. — the authority empowered to declare that the required conditions obtain and to decide what means, arrangements or methods may be used, within what limits and by whom,

12. T h e H u n t i n g Union argues t h a t Article 9(1) provides wide scope for derogating from the basic system of pro- tection laid down in the Directive and, in — the controls which will be carried out.' particular, from the provisions of Article 7. Such derogations, however, must be subject to the criteria set out in the Directive. In view of the fact that the hunting of wild birds and waterfowl is subject to more 10. Pursuant to Article 9(3), Member stringent monitoring than the hunting of States must send a report to the Commis- other birds, it is only a derogation that

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VI — Analysis of the questions referred for a preliminary ruling

15. The Commission claims that the expression 'other judicious use' includes On the first question hunting. As concerns the conditions under which hunting may be carried out, by way of derogation, the Commission cites the requirements set out in Article 9 of the 17. By the first question, the Conseil d'État Directive. seeks to ascertain whether the exceptional I-12112

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arrangements set out in Article 9 of the For the purposes of the case before the Directive may be relied upon to authorise Court, Article 9(1) permits derogations certain hunting activities. As the French from the principle of total protection, Government points out, in order to estab- provided that there is no other satisfactory lish whether Article 9(1)(c) of the Directive solution, 'to permit, under strictly super- permits derogations from the opening and vised conditions and on a selective basis, closing dates for hunting, fixed in accord- the capture, keeping or other judicious use ance with the aims of Article 7(4), it is of certain birds in small numbers' (sub- necessary to determine whether the dero- paragraph (c)). gations from the principle of total protec- tion can be applied to hunting itself.

19. It is clear, as the Commission points out, that nothing in the disputed legislation necessarily leads to the exclusion of hunting In the light of the Directive's purpose, as a merely recreational activity from the scheme and spirit of conservation, and in criteria for the application of Article 9(1)(c). view of the terms used in Article 7(4) and Furthermore, some approaches could lead Article 9(1) and (2), I do not believe that to to the contrary conclusion. be the case.

23. To my mind, an alternative interpre- tation is preferable. Article 9(1)(c) permits, on the conditions set out therein, the hunting of a limited number of birds during the period of particular vulnerability, but it does not permit hunting as a recreational activity. 25. In addition, it follows from the word- ing of Article 9(1) that all the activities referred to are quite specific. The thirteenth recital in the preamble states that, 'because of the importance which may be attached to certain specific situations, provision should be made for the possibility of derogations on certain conditions and sub- ject to monitoring by the Commission'. 24. It is clear simply from reading Article 9(1) stipulates that derogations may Article 9(1) that, firstly, the derogations it be established provided that there is no provides for pursue objectives which are other satisfactory solution, and, in relation deemed to be more important in relation to to subparagraph (c), that capture, keeping the general principle of total protection of or other judicious use must be effected in certain species. Those derogations are small numbers under strictly supervised intended to protect public health and conditions and on a selective basis. safety, and air safety, to prevent serious Article 9(2) attaches a series of require- damage to crops, livestock, forests, fisheries ments regarding the criteria which the and water, and to safeguard flora and derogations must meet and limits them to fauna (subparagraph (a)). In those cases, 'what is strictly necessary', under the strict compliance with the principles of supervision of the Commission. 12

27. Accordingly, it is my view that the terms used in, and the scheme of, the It would, therefore, be astounding if rec- Directive are aimed at excluding hunting reational hunting were included among the as a recreational activity from the case of cases set out in Article 9(1). Its inclusion 'judicious use' in Article 9(1 )(c). Naturally, would be inconsistent with the terminology that does not constitute a value judgment of the Directive, which refers frequently to about hunting but is rather the result of hunting, notably in Articles 5, 7 and 8, applying a literal, systematic interpretation. where the main points of the substantive provisions from which it is possible to derogate under Article 9 are set out. It seems unusual that the activity which probably constitutes the principal risk fac- tor in the conservation of certain species should be described ambiguously, and 28. There remain the arguments which can alongside other more suitable activities, as be inferred from the three judgments cited 'judicious use'. above.

Article 9(1 )(c) of the Directive covers a number of exceptional cases which the In my opinion, some qualification of the Community legislature was unwilling or weight of those arguments is required. unable to provide for explicitly. Had the legislature wished to include hunting for recreational purposes, it would have men- tioned it expressly.

First, in none of those cases was any attempt made to establish whether hunting, as a merely recreational pursuit, is covered by any of the cases in Article 9(1 )(c). That strict interpretation must also prevail Furthermore, the facts which gave rise to in view of the exceptional nature of those proceedings had some noteworthy Article 9, construed in the light of the specific features.

Finally, in Ligue royale, the Court held that the capture of certain protected species in order to enable fanciers to stock their aviaries or to obviate the problems of consanguinity in recreational bird breeding could amount to judicious use for the 31. Furthermore, even if accepting, just for purposes of Article 9(1)(c) of the Directive. the sake of argument, that hunting for Again, that case concerned an activity recreational purposes may be regarded as whose aim and magnitude differ from those 'judicious use' within the meaning of of hunting. Article 9(l)(c), it does not in itself appear capable of fulfilling another condition governing the exceptional arrangements which may be instituted under Article 9, namely that there must be an overriding need for it owing to the lack of another 29. In those three judgments, the Court satisfactory solution. drew attention to the exceptional nature of 14 — Judgments in Commission v Italy, paragraph 7, and WWF Italiana, paragraph 21. 13 — Commission v Italy, paragraph 38. 15 — Judgment in Commission v Italy, paragraph 39 in fine.

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32. At first sight, it is difficult to imagine, hunting except in cases where certain even in the abstract, the circumstances in species are present in a particular territory which one recreational activity may not be only during their reproductive phase and replaced by another sufficiently satisfactory not at any other time of the year. In such one. The fact that certain birds may not be circumstances, the only satisfactory sol- hunted during the period of special vulner- ution would be to hunt those species during ability can be compensated for by hunting that period. during the rest of the year, or by another recreational pursuit.

For its part, the French Government claims 16 — See the Communication from the Commission on the that Article 9(1 )(c) does not apply to precautionary principle (COM/2001/1 final).

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territory only during that period is tanta- 38. If the Court should give a reply to the mount to subverting the priorities of the first question which differs from the one Directive. that I have proposed, I should like to make the following observations.

35. The obscure or contrived nature of the arguments that have been put forward to 39. It appears from the wording of Article 9 justify the need for hunting during the of the Directive that the exceptional period of vulnerability confirms my initial arrangements set out therein may be impression that Article 9(1) is not designed applied only when three conditions are to permit derogations from the general met: prohibition in the interests of hunting as a recreational pursuit.

(a) there is no other satisfactory solution;

41. In another line of thought, the Court 40. In Commission v Belgium and Com- also noted that where a general legal mission v Italy, the Court followed a context ensures the full application of the similar line of reasoning and declared that Directive in a clear and precise manner, the the possibility of establishing derogations transposition of the Directive into national under Article 9 of the Directive is subject to law does not require the Community three conditions. First, the Member State provisions to be incorporated in precisely must restrict the derogation to cases in the same words in a specific express which there is no other satisfactory sol- provision, such general legal context being ution; secondly, the derogation must be sufficient. based on at least one of the reasons listed in Article 9(1 )(a), (b) and (c); thirdly, the derogation must comply with the precise formal conditions set out in Article 9(2), which are intended to limit derogations to what is strictly necessary and to enable the Commission to supervise them. The Court 42. Finally, before I draw this discussion of indicated that, although Article 9 auth- case-law to a close, I should like to point orises wide derogations from the general out that a faithful transposition of the letter system of protection, it must be applied appropriately in order to deal with precise requirements and specific situations. 17 The 18 — W.G. Sebald, in his novel Attsterhtz (Anagrama, Barce- lona, 2002. pp. 84 and 851, describes the skill with which Court considered it useful to point out that certain hirds, 'holdingon with their beaks, would climb up the bars and sometimes perforin all manner of acrobatic Article 2 of the Directive requires the turns on their way down, would fly in and out through the Member States to take the requisite meas- open windows or jump and run along the ground, always active and, one had the impression, always busy doing ures to maintain the population of all bird something. Most of them resembled humans m many respects. One could hear them breathe, laugh, sneeze and yawn. They would clear their throats before starting to talk their language'. (Translated into English from the Spanish translation) 17 — See paragraph 7 of the judgment in each case. 19 — Sec paragraph 8 of the judgment in each case.

20 — Judgments in Commission v Italy, paragraph 9; Commis- sion v Belgium, paragraph 9; Commission v Netherlands [1987] ECR 3989, paragraph 5; and [Commission v France, paragraph 5]. 21 —Judgments in Case C-339/87 Commission v Netherlands — the species which are covered by [1990] ECR I-851, paragraph 28, and WWF Italiana, paragraph 22. the derogations, the means or 22 — Judgment in WWF Italiana, paragraph 26. methods authorised for capture or I - 12120

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killing, the conditions of risk and the means, arrangements or the circumstances of time and methods that may be used, on place in which such derogations what limits are to apply, and on may be granted; who the authorised persons shall be; and

— the authority empowered to declare that the required con- — the controls which must be carried ditions obtain and to decide on out.

VII — Conclusion

46. In the light of the foregoing considerations, I propose the following reply to the questions referred by the Conseil d'État: