# EUR-Lex - 61999J0159 - EN

Avis juridique important

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# 61999J0159

**Judgment of the Court (Sixth Chamber) of 17 May 2001. - Commission of the European Communities v Italian Republic. - Failure by a Member State to fulfil its obligations - Directive 79/409/EEC - Conservation of wild birds - Admissibility. - Case C-159/99. **

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European Court reports 2001 Page I-04007 *

Summary
Parties
Grounds
Decision on costs
Operative part

## Keywords

Actions for failure to fulfil obligations - Subject-matter of the dispute - Delimited in the course of the pre-litigation procedure - Supplementary reasoned opinion introducing a new complaint not formulated in the letter of formal notice - Inadmissibility

(EC Treaty, Art. 169 (now Art. 226 EC))

Summary

 $$Where, in an action against a Member State for failure to fulfil its obligations, the Commission, in a supplementary reasoned opinion, formulates a new complaint against the Member State which was not formulated in its letter of formal notice, and that amendment of the complaints, despite the generality of terms which is admissible for a letter of formal notice, goes beyond a mere clarification of the first initial brief summary of complaints, the Commission's second complaint cannot be examined in the proceedings before the Court.

## Summary

( see para. 54 )

Parties

In Case C-159/99,

## Parties

Commission of the European Communities, represented by P. Stancanelli, acting as Agent, with an address for service in Luxembourg,

applicant,

v

Italian Republic, represented by U. Leanza, acting as Agent, assisted by P.G. Ferri and M. Fiorilli, avvocati dello Stato, with an address for service in Luxembourg,

defendant,

APPLICATION for a declaration 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 Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1) and Annex II thereto, 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 engenders an unacceptable degree of legal uncertainty; and

- by laying down rules concerning the conditions and detailed rules for the application of the derogation from the prohibitions laid down by Directive 79/409 which do not fully comply with the requirements under Article 9 thereof, in particular as regards the reasons for derogation, listed in Article 9(1)(a) and (b),

the Italian Republic has failed to fulfil its obligations under Community law.

THE COURT (Sixth Chamber),

composed of: C. Gulmann (Rapporteur), President of the Chamber, V. Skouris, J.-P. Puissochet, R. Schintgen and F. Macken, Judges,

Advocate General: P. Léger,

Registrar: D. Louterman-Hubeau, Head of Division,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 9 November 2000,

after hearing the Opinion of the Advocate General at the sitting on 15 February 2001,

gives the following

Judgment

Grounds

1 By application lodged at the Court Registry on 30 April 1999, the Commission of the European Communities brought an action under Article 169 of the EC Treaty (now Article 226 EC) for a declaration that:

## Grounds

- 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 Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1; the birds directive or the directive) and Annex II thereto, and by providing that those rules were to apply by way of a general and permanent derogation, which is contrary to Article 9 of that Directive and engenders an unacceptable degree of legal uncertainty; and

- by laying down rules concerning the conditions and detailed rules for the application of the derogation from the prohibitions laid down by the birds directive which do not fully comply with the requirements under Article 9 thereof, in particular as regards the reasons for derogation, listed in Article 9(1)(a) and (b),

the Italian Republic had failed to fulfil its obligations under Community law.

Community law

2 In accordance with Article 1 thereof, the birds directive relates to the conservation of all species of naturally occurring birds in the wild state in the European territory of the Member States to which the EC Treaty applies. It covers the protection, management and control of those species and lays down rules for their exploitation.

3 Article 5(a) and (e) of the directive impose a general prohibition on the killing, capture or keeping of all species of birds referred to in the directive.

4 However, Article 7(1) of the directive provides that the species listed in Annex II may be hunted under national legislation.

5 Furthermore, Member States may, where there is no other satisfactory solution, derogate from the hunting restrictions, and from the other restrictions and prohibitions contained in Articles 5, 6 and 8 of the birds directive, for the reasons listed in Article 9(1)(a), (b) and (c) thereof, namely:

- first, under Article 9(1)(a), in the interests of public health and safety and air safety, to prevent serious damage to agriculture, forests, fisheries and water, or for the protection of flora and fauna;

- secondly, under Article 9(1)(b), for the purposes of research and teaching, of repopulation, of reintroduction and for the breeding necessary for those purposes;

- thirdly, under Article 9(1)(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.

6 Under Article 9(2) of the directive:

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 law

7 Pursuant to Article 1(4) of Italian Law No 157/92 of 11 February 1992 (GURI No 46 of 25 February 1992, ordinary supplement No 41; Law No 157/92), the birds directive is wholly transposed and implemented in accordance with the detailed rules and within the time-limits prescribed by that Law.

8 Article 1(3) of Law No 157/92 provides that ordinary regions (regioni a statuto ordinario) are to adopt regulations governing the management and protection of all species of wild fauna in accordance with that Law, international conventions and Community directives. That provision also provides that special regions (regioni a statuto speciale) and autonomous provinces are subject to that obligation within the limits of their exclusive powers, as defined by their respective constitutions.

9 Article 2(3) of Law No 157/92 provides that monitoring of the population level of birds at airports is entrusted to the Minister for Transport.

10 Article 4(4) of Law No 157/92 lists a certain number of species of wild birds whose capture for the purpose of sale as a decoy is permitted. Those species include the three concerned by the present action.

11 Article 5(2) of Law No 157/92 provides:

The regions shall also make provisions concerning the establishment and management of the stock of live capture decoys of the species referred to in Article 4(4) and which authorise any hunter who carries on a hunting activity, in accordance with Article 12(5)(b), to keep a maximum of 10 specimens of each species up to a maximum of 40. For hunters using a temporary hide and live decoys, the above complement may not exceed a total maximum of 10 birds.

12 The initial version of Article 18 of Law No 157/92 authorised the hunting of various species, including those covered by this action, which, however, were not among the species which might be hunted in Italy according to Annex II to the directive.

13 Article 19(2) of Law No 157/92 provides that it is for the regions to carry out control of wild animal species, including in areas where hunting is prohibited, in order to attain the following objectives: improvement of the management of the zoological stock, protection of the soil, health reasons, biological selection, protection of the historical and artistic heritage, protection of animal, agricultural and forestry production and of fishery reserves. The control in question must be carried out selectively and, as a general rule, with the use of ecological methods.

14 By Circular Letter No 3/93 of 29 January 1993 (GURI No 38, of 16 February 1993; Circular 3/93), the Ministry of Agriculture issued a number of clarificatory statements on Law No 157/92. Thus, having summarised the rules of the directive, the Ministry first issued a reminder of the bird species which could be hunted in accordance with Article 18 of Law No 157/92 and, second, explained to the regions that the species referred to in that list but not appearing in Annex II to the directive could be hunted only in so far as the conditions of the derogations laid down in Article 9 of the directive were fulfilled. Circular 3/93 further stated that the capture of birds with a view to their sale as decoys, referred to in Articles 4(4) and 5(2) of Law No 157/92, is permitted in the context of the derogations authorised on the basis of Article 9(1)(c) of Directive 79/409/EEC.

15 In order to comply with the provisions of the birds directive concerning the species which could be hunted in Italy, the Prime Ministerial Decree of 21 March 1997 (GURI No 98, of 29 April 1997; the Decree of 21 March 1997) amended Article 18 of Law No 157/92 by excluding nine species of birds, including the three concerned by this action, from the list of species which might be hunted.

16 The Istituto Nazionale per la Fauna Selvatica (National Wildlife Institute; the INFS) sent a number of regions a circular letter of 13 May 1997 (the circular of 13 May 1997), which explained, inter alia, as follows:

[The Decree of 21 March 1997] has excluded from the species which may be hunted, inter alia, the starling (Sturnus vulgaris), the Italian sparrow (Passer italiae), the tree sparrow (Passer montanus) and the house sparrow (Passer domesticus), which were previously still being captured for the supply of live decoys for hunting from a hide.

The protection granted to these four species does not allow them to be used as hunting decoys; amendments must therefore be made to the rules in force for the management of trapping equipment.

...

17 On 27 September 1997, the Italian Prime Minister adopted a decree (GURI No 254, of 30 October 1997; the Decree of 27 September 1997), which lays down the detailed rules for exercising the derogation provided for in Article 9(1)(c) of the birds directive. Concerning the derogations provided for in Article 9(1)(a) and (b) of that directive, the preamble to that decree indicates that they are governed by Articles 2(3) and 19 of Law No 157/92. Following actions brought by a number of regions, the Corte costituzionale (Constitutional Court) (Italy) annulled the Decree of 27 September 1997 by its Decision No 169 of 14 May 1999.

The pre-litigation procedure

18 After an examination of the Italian rules, the Commission sent the Italian Government a letter of formal notice on 30 November 1993, in accordance with Article 169 of the Treaty, requesting it to submit its observations within two months.

19 In that letter of formal notice, the Commission referred, in points 1 and 2, to the Italian rules on hunting and the capture of the three species concerned in the present action. In point 3, it stated as follows:

... Even though [Circular 3/93] excludes the species of birds in question from being hunted and captured and draws attention to the fact that only the system of derogation in Article 9 of the [birds] directive may in certain cases be used for those species, it does not by its legal nature, even if published in the GURI, constitute a sufficient means of binding its addressees and prevailing over the list of species which may be hunted and captured contained in Law No 157/92.

According to the case-law of the Court of Justice, a circular is not sufficient fully to satisfy the requirement of legal certainty.

In this case, a situation of legal uncertainty may arise, since the Law authorises the hunting and capture of the abovementioned species, and does so without restriction, whereas the circular contains a contrary message.

Neither the regional or local authorities nor hunters may deduce with certainty from those two texts which birds may be hunted and at what time.

In addition, Article 9(2) of the [birds] directive requires an administrative authority to determine in respect of the cases falling within the scope of Article 9(1), if the conditions of that paragraph are fulfilled, in what area and for what birds hunting may exceptionally be authorised.

The authorities responsible under Article 9(2) of the [birds] directive must also examine whether there is any other satisfactory solution which would allow the problem in the particular case to be resolved without the need to resort to the granting of a derogation.

...

20 By letter of 21 March 1997, the Italian authorities announced to the Commission the imminent adoption of regulations in order to comply with the obligations imposed by the birds directive. On 29 May 1997, the Italian Government sent the Commission the text of the Decree of 21 March 1997.

21 On 7 August 1997, considering that the measures adopted by the Italian authorities to deal with the complaint contained in the letter of formal notice were insufficient, the Commission sent the Italian Republic a reasoned opinion in which it formulated a single complaint, identical in substance to the first claim in the present action.

22 By letter of 1 October 1997, the Italian Government sent the text of the Decree of 27 September 1997 to the Commission.

23 After analysing the content of that decree, on 18 June 1998 the Commission sent the Italian Republic a further reasoned opinion, in which it formulated a new complaint, identical to the second claim in this action.

24 In the absence of any reaction from the Italian Government, the Commission decided to bring the present action.

The first claim

25 In this claim, the Commission accuses the Italian Government, first, of establishing a system of rules authorising the capture and keeping of the three species concerned in this action, contrary to the combined provisions of Articles 5 and 7 of, and Annex II to, the birds directive, and, secondly, of providing that that system was to apply as a general and permanent derogation, in breach of Article 9 of that directive.

26 Concerning the first part of the claim, the Commission argues that the wording of Articles 4(4) and 5(2) of Law No 157/92 clearly shows that the three species concerned by this action may be captured and held for the purpose of sale as decoys, contrary to the combined provisions of Articles 5 and 7 of, and Annex II to, the birds directive.

27 The Italian Government contends in its defence that, by excluding from the list of species which may be hunted the three species concerned by this action, the Decree of 21 March 1997 also excluded the capture and keeping of those species, given the close connection between, on the one hand, the provisions of Articles 4(4) and 5(2) of Law No 157/92 and, on the other, Article 18(1) of the same Law. In its submission, only species for which hunting is authorised may be captured or kept.

28 The Government further argues that Italian legislation organises the activity of capture in a precise manner, under the direct supervision of the authorities and public bodies. The monitoring of the activity of those bodies was entrusted to the INFS, which, after the adoption of the Decree of 21 March 1997, gave the administrative authorities concerned the necessary instructions by means of the circular of 13 May 1997 to ensure that the three species of birds covered by this action could be excluded from capture for the purposes of use as decoys.

29 By way of a preliminary observation, Articles 5 and 7 of the birds directive prohibit the hunting, capture and keeping of specimens of species which do not appear in Annex II to that directive. The species Passer italiae, Passer montanus and Sturnus vulgaris are not listed in that annex as being amongst those which may be captured and kept in Italy.

30 However, the wording of Article 4(4) of Law No 157/92 shows that the capture of specimens of those three species for the purposes of sale as decoys is authorised in Italy. Similarly, Article 5(2) of Law No 157/92 allows the regions to lay down detailed rules for keeping specimens of those three species intended for use as decoys.

31 It must therefore be held that the national regulations are incompatible with the combined provisions of Articles 5 and 7 of the birds directive and Annex II thereto.

32 Concerning the argument of the Italian Government that, in reality, the prohibitions arising from the birds directive are complied with bearing in mind, first, the amendment of Article 18 of Law No 157/92 by the Decree of 21 March 1997 and, secondly, the circular of 13 May 1997, the following considerations from the case-law of the Court of Justice concerning the obligations upon Member States when they transpose Community directives must be borne in mind:

- the provisions of directives must be implemented with unquestionable binding force, and the specificity, precision and clarity necessary to satisfy the requirements of legal certainty (see, in particular, Case C-225/97 Commission v France [1999] ECR I-3011, paragraph 37); and

- mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of a Member State's obligations under the Treaty (see, in particular, Case C-315/98 Commission v Italy [1999] ECR I-8001, paragraph 10).

33 The transposition into Italian law of the obligations arising from Articles 5 and 7 of the birds directive and Annex II thereto does not comply with the requirements laid down in that case-law.

34 Even if the amendment of Article 18 of Law No 157/92 by the Decree of 21 March 1997 did result in the exclusion from capture, for the purposes of use as decoys, of the three species at issue in this action, the fact remains that the provisions of Articles 4 and 5 of that Law permitting the capture and keeping of those three species for the purposes of use as decoys have not been formally amended, thereby creating in this case an ambiguity rendering compliance with the prohibition of those activities laid down in the birds directive uncertain.

35 Moreover, even if, as the Italian Government claims, the circular of 13 May 1997 had the effects described in paragraph 28 of this judgment, such a circular, which by its nature is alterable at will by the authorities, is not sufficient to transpose the articles of the birds directive in question.

36 It must therefore be held that Articles 5 and 7 of the birds directive and Annex II thereto have not been transposed into Italian law with the exactitude, precision and clarity required by Community law.

37 In the second part of the first claim, the Commission accuses the Italian Republic of providing that the national system of rules referred to in the first part of this claim is to apply as a general and permanent derogation, in breach of Article 9 of the birds directive, thereby creating a situation of legal uncertainty.

38 The Commission explains this part of its claim by reference to the fact that the Italian authorities sent the Decree of 27 September 1997 to the Commission following its first reasoned opinion. In the Commission's submission, that decree could end the incompatibility between Law No 157/92 and the birds directive only if Article 3 thereof, relating to derogations, were to be interpreted as applying to all cases where specimens of protected species were captured for the purposes of sale as decoys, that is to say to all cases governed by Article 4(4) of Law No 157/92.

39 In that respect, the Court makes the following findings.

40 First, whilst it is true, as the Commission has indicated, that Article 9 of the directive cannot in any way justify a derogation from Articles 5 and 7 thereof and Annex II thereto consisting in generally and permanently permitting the capture and keeping of the three species concerned by this action, it should be noted that the Italian Government denies having argued, in the course of these proceedings for failure to fulfil obligations, that Article 3 of the Decree of 27 September 1997 applies as a general and permanent derogation.

41 It is in fact undisputed that, in its observations before the Court, that government based its defence on the argument that the capture and holding of the three species concerned by this action were not permitted in Italy, and not on an application of Article 9 of the birds directive.

42 Next, it should be noted that, by its decision of 14 May 1999, the Corte costituzionale annulled the Decree of 27 September 1997, holding in particular that the competent authorities in hunting matters, including the regions, may not apply the derogations laid down in Article 9 of the birds directive in the absence of prior general legislation to deal with that question, the adoption of which falls within the competence of the State.

43 Finally, it should be noted that, in its reply, the Commission itself states that any discussion on this part of the first claim has become theoretical given that the Decree of 27 September 1997 has been annulled by the Corte costituzionale and that, as matters stand, there is no legislative provision limiting the application of Articles 4(4) and 5(2) of Law No 157/92.

44 In those circumstances, there is no need to rule on this part of the first claim.

The second claim

45 In this claim, the Commission complains that, in relation to the conditions governing, and detailed rules for applying the derogations from the prohibitions imposed by the birds directive, the Italian Republic has established a system of rules that does not fully comply with the requirements laid down in Article 9(1)(a) and (b) of the directive.

46 The Commission argues that the Decree of 27 September 1997 constitutes a sufficient measure to ensure the transposition of the essential features of Article 9 of the birds directive only in relation to the possibility of derogation provided for in Article 9(1)(c). By contrast, concerning the possibilities for derogation provided for in Article 9(1)(a) and (b) of the birds directive, that decree merely refers to another legislative text, indicating that the derogations in question are governed by Articles 2(3) and 19 of Law No 157/92. However, neither those two latter provisions nor any other provision of Italian law define the conditions governing, or the detailed rules for granting, the derogations in the cases envisaged in Article 9(1)(a) and (b) of the birds directive. The Commission therefore submits that Italian law lacks a full system of rules in conformity with Community law, allowing the derogations laid down in Article 9 of the birds directive to be applied in those particular cases.

47 The Italian Government argues in its defence that this complaint must be declared inadmissible since it does not fall within the context of the dispute as defined by the letter of formal notice of 30 November 1993.

48 The Commission replies that the principles governing the pre-litigation stage of the procedure were correctly applied in this case. It set out this second complaint clearly and comprehensively in the letter of formal notice, expressly referring to a number of the conditions to which application of the derogations provided for in Article 9 of the birds directive is subject.

49 The Commission argues that, according to consistent case-law of the Court of Justice, the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the complaints made by the Commission (Case C-96/95 Commission v Germany [1997] ECR I-1653 paragraph 22).

50 Relying once again on the case-law of the Court, the Commission argues in that respect that the purpose of the letter of formal notice is indeed to delimit the subject-matter of the dispute and to indicate to the Member State the factors enabling it to prepare its defence, but that that letter cannot be subject to the same requirements of exhaustiveness as the reasoned opinion. The letter of formal notice might consist in an initial brief summary of the complaints, set out in general terms, given that the reasoned opinion which follows should state those complaints with greater precision by means of a coherent and detailed statement of the reasons which led the Commission to conclude that the State in question had failed to fulfil its obligations under Community law (Case C-279/94 Commission v Italy [1997] ECR I-4743, paragraphs 14 and 15).

51 The letter of formal notice of 30 November 1993 shows that the Commission was there accusing the Italian Republic of having authorised, in breach of the directive, the hunting, capture and keeping of a certain number of wild bird species, including the three species at issue in this action. The mention in that letter of Article 9 of the birds directive was explained by the existence of Circular 3/93, in relation to which the Commission pointed out that only the system of derogation provided for in Article 9 of the directive might possibly be used in order to authorise the hunting and capture of species in respect of which Law No 157/92 permits those practices but which do not appear in Annex II to the directive.

52 Next, it should be noted that, in its first reasoned opinion of 7 August 1997, the Commission formulated a single complaint against the Italian Republic, namely, in substance, the same complaint as it had set out in its letter of formal notice.

53 Finally, it should be noted that, in its supplementary reasoned opinion of 18 June 1998, the Commission formulated two different complaints. It first reiterated the complaint formulated in its initial reasoned opinion and, in addition, accused the Italian Republic of establishing, in relation to the conditions governing, and detailed rules for applying, the derogations from the prohibitions imposed by the birds directive, a system of rules which did not comply with the requirements set out in Article 9(1)(a) and (b) of the directive. For that purpose, the Commission analysed in particular the Decree of 27 September 1997 in the light of Articles 2(3) and 19 of Law No 157/92.

54 It must therefore be held that, in its supplementary reasoned opinion, the Commission formulated a new complaint against the Italian Republic which was not formulated in its letter of formal notice. That amendment of the complaints, despite the generality of terms which is admissible for a letter of formal notice, goes beyond a mere clarification of the first initial brief summary of complaints, with the result that the Commission's second complaint cannot be examined in these proceedings.

55 The second claim, concerning the transposition of Article 9(1)(a) and (b) of the birds directive, must therefore be dismissed.

Decision on costs

Costs

## Decision on costs

56 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. However, under the first paragraph of Article 69(3), the Court may order that the parties bear their own costs where each party has succeeded on some and failed on other heads. Since both the Commission and the Italian Republic have been partially unsuccessful in their pleadings, they must be ordered to bear their own costs.

Operative part

On those grounds,

## Operative part

THE COURT (Sixth Chamber),

hereby:

1. Declares that, by laying down rules permitting the capture and keeping of the species Passer italiae, Passer montanus and Sturnus vulgaris, contrary to the combined provisions of Articles 5 and 7 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds and Annex II thereto, the Italian Republic has failed to fulfil its obligations under that directive;

2. Dismisses the remainder of the application;

3. Orders each of the parties to bear its own costs.