CELEX: 62002CJ0182
Directive 79/409/EEC
Conservation of wild birds
Opening and closing dates for hunting
Derogations

By decision of 25 January 2002, received at the Court on 15 May 2002, the Conseil d'État (Council of State) referred to the
Court for a preliminary ruling under Article 234 EC two questions on the interpretation of Article 9(1)(c) of Council Directive
79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1, hereinafter
the Directive).
Those questions were raised in actions brought before the Conseil d'État by the Ligue pour la protection des oiseaux (League
for the Protection of Birds), the Association pour la protection des animaux sauvages (Association for the Protection of Wild
Animals) and the Rassemblement des opposants à la chasse (Anti-Hunting Union) respectively seeking the annulment, for misuse
of powers, of Decree No 2000-754 of 1 August 2000 relating to the dates for the hunting of migratory birds and waterfowl and
amending the Rural Code (JORF of 5 August 2000, p. 12178, hereinafter
the contested decree).
Legal framework
Community legislation
Article 7 of the Directive is worded as follows:
1.
Owing to their population level, geographical distribution and reproductive rate throughout the Community, the species listed
in Annex II may be hunted under national legislation. Member States shall ensure that the hunting of these species does not
jeopardise conservation efforts in their distribution area.
2.
The species referred to in Annex II/1 may be hunted in the geographical sea and land area where this directive applies.
3.
The species referred to in Annex II/2 may be hunted only in the Member States in respect of which they are indicated.
4.
Member States shall ensure that the practice of hunting, including falconry if practised, as carried on in accordance with
the national measures in force, complies with the principles of wise use and ecologically balanced control of the species
of birds concerned and that this practice is compatible as regards the population of these species, in particular migratory
species, with the measures resulting from Article 2. They shall see in particular that the species to which hunting laws apply
are not hunted during the rearing season nor during the various stages of reproduction. In the case of migratory species,
they shall see in particular that the species to which hunting regulations apply are not hunted during their period of reproduction
or during their return to their rearing grounds. Member States shall send the Commission all relevant information on the practical
application of their hunting regulations.
Article 9(1) and (2) of the Directive provides:
1.
Member States may derogate from the provisions of Articles 5, 6, 7 and 8, where there is no other satisfactory solution, for
the following reasons:
(a)
─
in the interests of public health and safety,
─
in the interests of air safety,
─
to prevent serious damage to crops, livestock, forests, fisheries and water,
─
for the protection of flora and fauna;
(b)
for the purposes of research and teaching, of re-population, of re-introduction and for the breeding necessary for these purposes;
(c)
to permit, under strictly supervised conditions and on a selective basis, the capture, keeping or other judicious use of certain
birds in small numbers.
2.
The derogations must specify:
─
the species which are subject to the derogations,
─
the means, arrangements or methods authorised for capture or killing,
─
the conditions of risk and the circumstances of time and place under which such derogations may be granted,
─
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,
─
the controls which will be carried out.
National legislation
Article 2 of the contested decree provides that derogations from prohibitions on hunting outside the hunting periods set by
the administrative authorities and during certain vulnerable periods for birds may be granted by prefects (departmental heads
of administration) to permit the capture, keeping or other judicious use of geese, wood pigeons and thrush in small numbers,
until 20 February. An order of the Minister responsible for hunting, adopted following consultation with the Conseil national
de la chasse et de la faune sauvage (National Council for Hunting and Wildlife), lays down the conditions in which such uses
may be authorised and the procedures for the controls to be implemented. The Minister also determines, after consultation
with the Fédération nationale de la chasse (National Hunting Federation) and the Office national de la chasse et de la faune
sauvage (National Authority for Hunting and Wildlife), the maximum number of birds, by species, which may be taken in each
department. Prefects establish the maximum number of birds which may be taken by beneficiaries of the derogation.
The main proceedings and the questions referred for a preliminary ruling
In the actions brought before the Conseil d'État to annul the contested decree for misuse of powers, that court in essence
stated that Article 2 of that decree is intended to implement Article 9(1) of the Directive. According to the Conseil d'État,
the assessment of the legality of Article 2 depends, first, on whether Article 9(1)(c) of the Directive permits derogations
from the opening and closing dates for hunting set in the light of the objectives specified in Article 7(4) of the Directive
and, second, if so, what the criteria and limits are when laying down those derogations.
The Conseil d'État, after annulling Article 1 of the contested decree in part in so far as it related to the opening or closing
dates for hunting certain species, decided to stay proceedings and to refer the following questions to the Court for a preliminary
ruling:
1.
Does Article 9(1)(c) of Council Directive 79/409 of 2 April 1979 permit a Member State to derogate from the opening and closing
dates for hunting which follow from consideration of the objectives specified in Article 7(4) thereof?
2.
If so, what are the criteria which make it possible to establish the limits of that derogation?
The first question
Article 9(1)(c) of the Directive provides that Member States may derogate from, inter alia, Article 7 where there is no other
satisfactory solution, in order to permit, under strictly supervised conditions and on a selective basis, the capture, keeping
or other judicious use of certain birds in small numbers.
It therefore appears that Article 9(1)(c) of the Directive permits authorisation, in compliance with the conditions set out
in that provision, of the capture, keeping or other judicious use of certain birds during the periods mentioned in Article
7(4) of the Directive, during which the survival of wild birds is at particular risk.
According to the case-law of the Court, Article 9 of the Directive authorises Member States to derogate from provisions relating,
inter alia, to hunting (Case 247/85
Commission
v
Belgium
[1987] ECR 3029, paragraph 7). The Court has also accepted the possibility of derogating from the prohibition on hunting
species of birds not listed in Annex II to the Directive, to which Article 7(1) refers, in particular for the reason set out
in Article 9(1)(c) of the Directive (Case C-118/94
Associazione Italiana per il WWF and Others
[1996] ECR I-1223, paragraph 21).
It is clear from the foregoing that the hunting of wild birds for recreational purposes during the periods mentioned in Article
7(4) of the Directive may constitute a judicious use authorised by Article 9(1)(c) of that directive, as do the capture and
sale of wild birds even outside the hunting season with a view to keeping them for use as live decoys or to using them for
recreational purposes in fairs and markets (see Case 262/85
Commission
v
Italy
[1987] ECR 3073, paragraph 38).
The answer to the first question must therefore be that Article 9(1)(c) of the Directive permits a Member State to derogate
from the opening and closing dates for hunting which follow from consideration of the objectives set out in Article 7(4) of
the Directive.
The second question
First, Article 9 of the Directive authorises Member States to derogate from the general prohibition on hunting protected species
which is laid down in Articles 5 and 7 of the Directive only by measures which refer in sufficient detail to the factors mentioned
in Article 9(1) and (2) (see
Associazione Italiana per il WWF and Others
, cited above, paragraph 26).
A national measure which permits derogating from Article 7(4) of the Directive by virtue of Article 9(1), such as the measure
cited in paragraph 5 of this judgment, does not comply with the latter provision if it fails to refer to the fact that such
a derogation can be granted only where there is no other satisfactory solution (see, to that effect,
Commission
v
Italy
, cited above, paragraph 39).
Second, as regards hunting in particular, that activity can be permitted pursuant to Article 9(1)(c) of the Directive only
if:
─
there is no other satisfactory solution;
─
it is carried out under strictly supervised conditions and on a selective basis;
─
it applies only to certain birds in small numbers.
The first of the conditions set out in the preceding paragraph cannot be considered to have been satisfied when the hunting
period under a derogation coincides, without need, with periods in which the Directive aims to provide particular protection
(see, to that effect,
Commission
v
Italy
, paragraph 39). There would be no such need if the sole purpose of the derogation authorising hunting were to extend the
hunting periods for certain species of birds in territories which they already frequent during the hunting periods fixed in
accordance with Article 7 of the Directive.
The third of those conditions cannot be satisfied if a hunting derogation does not ensure the maintenance of the population
of the species concerned at a satisfactory level. If that condition is not fulfilled, the use of birds for recreational hunting
cannot, in any event, be considered judicious and, accordingly, acceptable for the purposes of the 11th recital in the preamble
to the Directive.
Finally, the measures under which hunting is authorised pursuant to Article 9(1)(c) of the Directive must, in accordance with
Article 9(2), specify:
─
the species which are subject to the derogations;
─
the means, arrangements or methods authorised for capture or killing;
─
the conditions of risk and the circumstances of time and place under which such derogations may be granted;
─
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;
─
the controls which will be carried out.
In the light of the foregoing, the answer to the second question must be that Article 9 of the Directive must be interpreted
as allowing hunting to be authorised pursuant to Article 9(1)(c) where:
─
there is no other satisfactory solution. That condition would not be met, inter alia, if the sole purpose of the derogation
authorising hunting were to extend the hunting periods for certain species of birds in territories which they already frequent
during the hunting periods fixed in accordance with Article 7 of the Directive;
─
it is carried out under strictly supervised conditions and on a selective basis;
─
it applies only to certain birds in small numbers;
─
mention is made of:
(a)
the species which are subject to the derogations;
(b)
the means, arrangements or methods authorised for capture or killing;
(c)
the conditions of risk and the circumstances of time and place under which such derogations may be granted;
(d)
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;
(e)
the controls which will be carried out.
Costs
The costs incurred by the French and Greek Governments and by the Commission, which have submitted observations to the Court,
are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending
before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (Sixth Chamber),
in answer to the questions referred to it by the Conseil d'État by decision of 25 January 2002, hereby rules:
1.
Article 9(1)(c) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds permits a Member State to
derogate from the opening and closing dates for hunting which follow from consideration of the objectives set out in Article
7(4) of that directive.
2.
Article 9 of Directive 79/409 must be interpreted as allowing hunting to be authorised pursuant to Article 9(1)(c) where:
─
there is no other satisfactory solution. That condition would not be met, inter alia, if the sole purpose of the derogation
authorising hunting were to extend the hunting periods for certain species of birds in territories which they already frequent
during the hunting periods fixed in accordance with Article 7 of Directive 79/409;
─
it is carried out under strictly supervised conditions and on a selective basis;
─
it applies only to certain birds in small numbers;
─
mention is made of:
(a)
the species which are subject to the derogations;
(b)
the means, arrangements or methods authorised for capture or killing;
(c)
the conditions of risk and the circumstances of time and place under which such derogations may be granted;
(d)
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;
(e)
the controls which will be carried out.
Puissochet
Schintgen
Gulmann
Skouris
Colneric
Delivered in open court in Luxembourg on 16 October 2003.
R. Grass
V. Skouris
Registrar
President
–
Language of the case: French.