CELEX: 62004CJ0135
Conservation of wild fauna
Wild birds
Hunting periods
Hunting of woodpigeon during return journey in the province of Guipúzcoa

1       By its action, the Commission of the European Communities asks the Court for a declaration that, by allowing the practice
of ‘a contrapasa’ hunting of woodpigeons in the province of Guipúzcoa, the Kingdom of Spain has failed to fulfil its obligations
under Article 7(4) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1)
(‘the Directive’).

Legal framework

The Directive
2       Article 7 of the Directive reads 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.
…
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 in the practical
application of their hunting regulations.’
3       The woodpigeon is referred to in Annex II to the Directive.
4       Article 9(1) of the Directive provides:
‘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:
...
(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.’

National law
5       According to the eighth additional provision of Law No 40/97 of 5 November 1997 amending Law No 4/89 of 27 March 1989 relating
to the conservation of natural species, wild flora and fauna (BOE of 6 November 1997), if no other satisfactory solution is
possible, the competent administrative authority may, with respect to migratory species which are not in danger of becoming
extinct, lift the prohibition on hunting during the various stages of reproduction and during their return to their rearing
grounds, with a view to permitting, in traditional areas, under strictly supervised conditions and on a selective basis, the
capture, keeping or other judicious use of certain cynegetic species in small numbers within the limits necessary for ensuring
the conservation of the species.
6       Each year, the Ministry of Agriculture and the Environment of the Diputación Foral de Guipúzcoa approves a decree (Orden Foral)
permitting, for the applicable season, the hunting of woodpigeons during their return to their rearing grounds (‘a contrapasa’
hunting), for a period usually running between 15 February and 25 March.

Background to the dispute
7       In February 1998, the Commission received a complaint that ‘a contrapasa’ hunting of woodpigeons was permitted in Guipúzcoa.
8       On 30 June 1998, the Spanish authorities, when questioned on the subject by letter of 23 March 1998, argued that the permission
for that method of hunting was justified by:
–       demand and social pressure, since ‘a contrapasa’ hunting was traditional;
–       the minimal or non-existent impact of that hunting on the conservation of the species;
–       the restrictive conditions imposed by the Diputación Foral de Guipúzcoa on the hunting of woodpigeons;
–       the lack of any other satisfactory solution which might be used instead of permitting, under certain conditions, the capture,
keeping or other judicious use of certain birds in small numbers.
9       Taking the view that, by allowing the practice of hunting woodpigeons in Guipúzcoa, the Kingdom of Spain had failed to fulfil
its obligations under Article 7(4) of the Directive, on 30 April 1999 the Commission sent a letter of formal notice to the
Spanish Government.
10     By letter of 23 July 1999, the Spanish Government stated that, in 1998, 23 875 hunters had taken part in the ‘a contrapasa’
hunt, and then for a period of only 39 days, which was indicative of the demand and social pressure in favour of such a type
of hunt in Guipúzcoa. In the light of that pressure, the only possible solution was to allow the ‘a contrapasa’ woodpigeon
hunt, with all due restrictions imposed, that species, moreover, not being in decline. Lastly, the letter stated that only
1 013 pigeons had been killed in 1998 and 1 158 in 1999. The practice of ‘a contrapasa’ hunting was thus in keeping with the
principle of sound use and balanced regulation of the species in question.
11     Considering that the explanations provided by the Spanish authorities indicated a failure on their part to fulfil their obligations
under Article 7(4) of the Directive, on 8 February 2000 the Commission issued a reasoned opinion to the Kingdom of Spain,
inviting it to adopt the measures necessary to comply with the reasoned opinion within two months of its notification.
12     Since the Kingdom of Spain did not reply to the reasoned opinion, the Commission considered that the infringement was continuing
and decided to bring the present action.

The action

Arguments of the parties
13     The Commission maintains that because the type of hunting at issue in the present proceedings takes place during the woodpigeon’s
return to its rearing grounds, it comes within the scope of the prohibition laid down in Article 7(4) of the Directive and
cannot be justified under the exception scheme provided for in Article 9 of that directive. Because the authorisation for
the ‘a contrapasa’ hunting of woodpigeons is intended to extend the usual period of hunting of that species in an area where
the species is already present during that period, the condition that there must be no other satisfactory solution is not
met in the present case.
14     The Spanish Government states that the requirement laid down in Article 9(1) of the Directive that there must be no other
satisfactory solution makes sense only with respect to grounds for a derogation other than that referred to in Article 9(1)(c).
Apart from a hunting prohibition, no other satisfactory solution is possible instead of allowing, under certain conditions,
the capture, keeping or other judicious use of certain birds in small numbers, as provided for in Article 9(1)(c) of the Directive.
The Spanish Government states that, in any event, the hunting of woodpigeons allowed during their return to their rearing
grounds is practised in a different area from where they are hunted during the regular season. Thus the hides situated inside
the lands and used for that type of hunting in October and November (migration period) are mostly located in different areas
from the hides used in February and March (return period), the latter being situated mainly along the coast, in areas not
frequented by woodpigeons during the migration in October and November. Accordingly, there is no other satisfactory solution
to hunting the woodpigeons during their return to their rearing grounds. Nor does the hunt in any way jeopardise the maintenance
of the population of the species in question at a satisfactory level.

Findings of the Court
15     Under Article 7(1) of the Directive, the species listed in Annex II may be hunted pursuant to national legislation. However,
Article 7(4) provides that migratory species to which the hunting legislation applies must be not be hunted in particular
during their return to their rearing grounds.
16     In the present case, woodpigeons come within the scope of those two provisions. Accordingly, they must not be hunted during
their return to their rearing grounds.
17     Article 9(1)(c) does permit authorisation, in compliance with the conditions set out in that provision, for the hunting of
species listed in Annex II during the periods referred to in Article 7(4) of the Directive, inter alia during their return
to their rearing grounds (see, to that effect, Case C-182/02
Ligue pour la protection des oiseaux and Others
[2003] ECR I‑12105, paragraphs 9 to 11).
18     The conditions which must be met for such a hunt to be authorised under Article 9(1)(c) of the Directive include the lack
of any other satisfactory solution (
Ligue pour la protection des oiseaux
, paragraph 15).
19     That condition 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. 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 (
Ligue pour la protection des oiseaux
, paragraph 16).
20     The Court notes that, in the present case, the hunting period in Guipúzcoa under a derogation coincides, without need, with
periods in which the Directive aims to provide particular protection.
21     It is apparent from the arguments before the Court that the areas in Guipúzcoa frequented by woodpigeons during the regular
hunting season are quite close to those frequented by them during their return to their rearing grounds. Thus, the former
areas are easily accessible to hunters residing in the latter areas.
22     It is clear that the decrees adopted each year by the competent authorities in Guipúzcoa to allow the hunt of woodpigeons
under a derogation in the territory of that province, in particular in certain municipalities along the coast, which are frequented
by woodpigeons only during their return to their rearing grounds, merely serve to extend the woodpigeon hunting season in
the territory of Guipúzcoa which, in the light of the foregoing, must be considered as a unique territory already frequented
by that species during the hunting period established pursuant to Article 7 of the Directive.
23     Since the condition that there must be no other satisfactory solution is not fulfilled in the present case, the hunting of
woodpigeons during their return to their rearing grounds cannot be authorised pursuant to Article 9(1)(c) of the Directive.
24     Accordingly, such a hunt is contrary to Article 7(4) of the Directive.
25     This finding is not affected by the Spanish Government’s arguments that, first, woodpigeons are not an endangered species
and, second, they are hunted year-round in the United Kingdom and, lastly, Spanish courts have found the decrees authorising
‘a contrapasa’ hunting of woodpigeons in Guipúzcoa to be in keeping with the Spanish legislation on hunting, which in turn
is compatible with the Directive.
26     The first two arguments put forward are not relevant to the condition that there be no other satisfactory solution and, therefore,
do not affect the finding in paragraph 22 of this judgment.
27     As to the third argument, it is not relevant since it has been established that ‘a contrapasa’ hunting is contrary to Article
7(4) of the Directive.
28     The Court finds that, by allowing the practice of ‘a contrapasa’ hunting of woodpigeons in Guipúzcoa, the Kingdom of Spain
has failed to fulfil its obligations under Article 7(4) of the Directive.

Costs
29     Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
applied for in the successful party’s pleadings. Since the Commission has applied for costs and the Kingdom of Spain has been
unsuccessful in its pleas, the latter must be ordered to pay the costs.
On those grounds, the Court (Second Chamber) hereby:
1.
Declares that, by allowing the practice of ‘a contrapasa’ hunting of woodpigeons in Guipúzcoa, the Kingdom of Spain has failed
to fulfil its obligations under Article 7(4) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds;
2.
Orders the Kingdom of Spain to pay the costs.
[Signatures]
*
Language of the case: Spanish.