Opinion of the Advocate General — ECLI:EU:C:2020:941
Date: 2020-11-19
Language of the case: French
Subject matter: Environment
Procedure: Reference for a preliminary ruling
Origin: France

Summary C-900/19 — 1 
Case C-900/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
6 December 2019 
Referring court:  
Conseil d’État (France) 
Date of the decision to refer:  
29 November 2019 
Applicants:  
Association One Voice 
Ligue pour la protection des oiseaux 
Defendant:  
Ministre de la Transition écologique et solidaire 
Intervener: 
Fédération nationale de la chasse 
1. Subject matter and particulars of the dispute 
1 The French legislation authorises, in five departments in the South East, the use of 
limes to capture thrushes and blackbirds intended for use as decoys, on conditions 
set out in a decree which provides, in particular, that the number of birds captured 
is to be limited each year by ministerial decree.  
2 Two animal protection associations condemn the use of limes, which in their view 
are cruel capture devices, and the taking of bird species which developments in 
scientific knowledge show to be experiencing a significant decline in populations 
and also to be sensitive to suffering.  
3 Those associations have brought actions before the Conseil d’État (Council of 
State) against the legislation authorising the use of limes. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-900/19 
 
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4 The Fédération nationale des chasseurs (National Federation of Hunters) has 
intervened voluntarily and claims that the actions should be dismissed.  
5 Examining, in particular, the pleas alleging infringement of the provisions and the 
objectives of the directive on the conservation of wild birds, the Conseil d’État 
(Council of State) stays the proceedings and refers two questions for interpretation 
to the Court of Justice.  
2. Legal framework  
European Union law 
The Treaty on European Union (TEU) 
6 Article 3 provides: 
‘1. … 
3. The Union shall establish an internal market. It shall work for the sustainable 
development of Europe based on … a high level of protection and improvement of 
the quality of the environment. …’ 
The Charter of Fundamental Rights of the European Union (the Charter) 
7 Article 37 provides: 
‘Environmental protection  
A high level of environmental protection and the improvement of the quality of 
the environment must be integrated into the policies of the Union and ensured in 
accordance with the principle of sustainable development.’ 
Directive 2009/147/EC of the European Parliament and of the Council of 
30 November 2009 on the conservation of wild birds (‘the “birds” directive’) 
8 Article 2 provides: 
‘Member States shall take the requisite measures to maintain the population of the 
species referred to in Article 1 at a level which corresponds in particular to 
ecological, scientific and cultural requirements, while taking account of economic 
and recreational requirements, or to adapt the population of these species to that 
level.’ 
9 Article 8 provides: 
‘1. In respect of the hunting, capture or killing of birds under this Directive, 
Member States shall prohibit the use of all means, arrangements or methods used 
ONE VOICE AND LIGUE POUR LA PROTECTION DES OISEAUX 
 
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for the large-scale or non-selective capture or killing of birds or capable of 
causing the local disappearance of a species, in particular the use of those listed in 
Annex IV, point (a).’ 
10 Article 9 provides, in the passages of interest in the present case: 
‘1. Member States may derogate from the provisions of Articles 5 to 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. …’ 
11 Annex IV reads as follows in the provision of interest in the present case: 
‘ANNEX IV 
(a)  
– Snares (…), limes, hooks, live birds which are blind or mutilated used as 
decoys, …’ 
French legislation  
The Environmental Code 
12 Book II (Hunting) includes Article L424-4, which provides, in the passages of 
interest in the present case: 
‘… 
In order to permit the strictly controlled selective hunting of small quantities of 
migratory birds, the Minister responsible for hunting shall authorise, on the 
conditions which he defines, the use of traditional hunting methods and resources 
that derogate from those authorised under the first paragraph. 
…  
Limes shall be applied one hour before sunrise and removed before 11 a.m. …’ 
The Decree of 17 August 1989 on the use of limes for the capture of thrushes and 
blackbirds intended to be used as decoys in the departments of Alpes-de-Haute-
Provence, Alpes-Maritimes, Bouches-du-Rhône, Var and Vaucluse 
13 Article 1 provides: 
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‘The use of limes to catch thrushes (…) and blackbirds intended to be used as 
decoys for personal use shall be authorised in the departments of Alpes-de-Haute-
Provence, Alpes-Maritimes, Bouches-du-Rhône, Var and Vaucluse under the 
strictly controlled conditions defined below in order to permit the selective 
capture of those birds in small quantities, since there is no other satisfactory 
solution’. 
14 Article 4 provides: 
‘Limes may remain in place only when a hunter is present. Every bird taken shall 
be cleaned immediately. The carrying of a rifle during those operations is 
prohibited.’. 
15 Article 6 provides: 
‘The maximum number of birds that may be caught during the season and, where 
appropriate, the technical specifications for each individual department shall be 
determined each year by the Minister responsible for hunting’. 
16 Article 11 provides: 
‘Any game other than thrushes (…) and blackbirds caught accidentally shall be 
cleaned and released immediately’. 
The Ministerial Decrees of 24 September 2018 relating to the 2018-2019 season 
17 The five decrees provide in Article 1, respectively: 
In the departments of [Alpes-de-Haute-Provence], [Alpes-Maritimes], [Bouches-
du-Rhône], [Var] and [Vaucluse], the maximum number of thrushes or blackbirds 
intended for use as decoys that may be caught using limes is fixed at [2 900], 
[400], [11 400], [12 200] and [15 600] respectively for the 2018-2019 season. 
3. Positions of the parties 
The applicants  
18 The applicant associations maintain that the French legislation infringes 
Article 9(1) of the ‘birds’ directive, notably in that it authorises a non-selective 
traditional hunting method. The Ligue pour la protection des oiseaux (League for 
the Protection of Birds) requests in that respect that an expert be appointed to 
determine the proportion of birds other than those authorised for capture by the 
use of limes that have been accidentally captured in limes during the last hunting 
seasons. Furthermore, the legislation does not justify the alleged absence of a 
satisfactory solution other than the capture with the use of limes which it 
authorises. 
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19 They observe, first of all, that Article 8 of the ‘birds’ directive prohibits large-
scale or non-selective methods of capture and in particular limes. However, 
Article 9 of the ‘birds’ directive authorises Member States to derogate from that 
prohibition ‘where there is no other satisfactory solution’ for a number of reasons, 
and in particular, in the words of sub-paragraph (c), to permit, on a selective basis, 
the capture of certain birds in small quantities. 
20 They further observe that the Court of Justice has stated that, ‘in order to permit 
the competent authorities to resort to the derogations laid down in Article 9 of 
Directive 2009/147 only in a manner which complies with EU law, the national 
legislative and regulatory framework must be designed in such a way that the 
application of the derogating provisions set out there is consonant with the 
principle of legal certainty. Accordingly, the applicable national legislation must 
specify the criteria for the derogation clearly and precisely and require the 
authorities responsible for their application to take them into account. In respect of 
exceptional arrangements, which must be interpreted strictly and impose on the 
authority taking the decision the burden of proving that those conditions exist for 
each derogation, the Member States are required to ensure that all action affecting 
the protected species is authorised only on the basis of decisions containing a clear 
and sufficient statement of reasons which refers to the reasons, conditions and 
requirements laid down in Article 9(1) and (2) of that directive’ (judgment of 
21 June 2018, Commission v Malta, C-557/15, EU:C:2018:477, paragraph 47 and 
the case-law cited). 
21 However the French authorities allow birds to be taken with the use of limes in 
conditions which are not strictly controlled, even though that that method of 
capture is not selective, without having ascertained whether there was any other 
satisfactory solution and without having shown that the numbers permitted to be 
taken constituted small quantities. 
22 Furthermore, the objective of protecting or maintaining the use of traditional 
means, equipment or methods of capture or killing of birds for purely recreational 
purposes cannot in itself justify the alleged non-existence of another satisfactory 
solution within the meaning of Article 9 that would permit a derogation from the 
general prohibition of certain methods of hunting laid down in Article 8.  
The defendant and the intervener 
23 The Ministre de la Transition écologique et solidaire (Minister for the Ecological 
and Inclusive Transition) and the Fédération nationale des chasseurs (National 
Hunting Federation) contend that the action should be dismissed as unfounded. 
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4. Assessment of the Conseil d’État (Council of State)  
The selective nature of the hunting process authorised by the derogation 
24 It follows from Article L424-4 of the Environmental Code in conjunction with 
Articles 1, 4 and 11 of the decree of 17 August 1989 that, in order to ensure the 
selective nature of the traditional method of capture consisting in the use of limes 
in the five departments concerned, hunters authorised to use limes must be 
permanently close to their devices, notably in order to identify the species present 
at the site, to ensure that species other than thrushes and blackbirds do not go near 
the devices and, where appropriate, to be in a position to clean and release 
immediately birds of other species which, in spite of those precautions, have 
accidentally been captured, as the use of limes is in principle a non-lethal mode of 
capture. 
25 In an action for failure to fulfil obligations concerning the French legislation then 
in force, which was broadly comparable with the current legislation, the Court of 
Justice held in the judgment of 27 April 1988, Commission v France (252/85, 
EU:C:1988:202, paragraphs 29 and 30) that ‘it should be pointed out that the 
French rules concerning the capture of thrushes and skylarks in certain 
departments are very precise. The abovementioned decrees make the grant of 
authorisations to capture such birds subject to a considerable number of restrictive 
conditions. Furthermore, it should be noted that the Commission has not shown 
that the French rules permit the capture of birds in a manner incompatible with a 
judicious use of certain birds in small numbers. The Commission has not 
contested the defendant’s argument that the number of birds captured constitutes a 
very small percentage of the population concerned’.  
26 However, with regard to Article 9 of the ‘birds’ directive, in the judgment of 
21 June 2018, Commission v Malta (C-557/15, EU:C:2018:477), concerning the 
legislation put in place by a Member State in relation to another traditional 
hunting process, which was delivered after Article 3 TEU and Article 37 of the 
Charter had entered into force, the Court of Justice held that that legislation did 
not satisfy the condition relating to the selective nature of a method of capture in 
order to be able to derogate from Article 8 of the directive, relying on the 
existence of ‘by-catch’ without specifying the size of such by-catch. However, it 
also held that the derogation granted by the legislation at issue did not correspond 
to ‘small quantities’ of birds, in breach of another condition laid down in 
Article 9(1)(c) of the ‘birds’ directive.  
27 The Conseil d’État (Council of State) will submit a first question for a preliminary 
ruling on the concept of ‘by-catch’ and on the selective nature required by the 
derogation provided for in Article 9(1)(c) of the ‘birds’ directive.  
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The unjustified absence of another satisfactory solution  
28 In its judgment of 21 June 2018, Commission v Malta (C-557/15, EU:C:2018:477, 
paragraph 51), the Court of Justice held that Article 9 of the ‘birds’ directive 
prescribes a ‘clear and sufficient statement of reasons concerning the conditions of 
the absence of another satisfactory solution’, required by Article 9 of the ‘birds’ 
directive.  
29 However, the decree of 17 August 1989 authorises the use of limes in the 
conditions which it determines on the ground that, having regard to the traditional 
nature of that method of hunting in the departments concerned, ‘there is no other 
satisfactory solution’ (Article 1), since the method of hunting corresponds, in the 
departments in which it is authorised, to a traditional method of hunting expressly 
referred to in Article L424-4 of the Environmental Code.  
30 The Conseil d’État (Council of State) therefore wonders whether the preservation 
of a traditional recreational method of hunting may mean in itself that there is no 
other satisfactory solution within the meaning of Article 9(1) of the directive, thus 
permitting a derogation from the general prohibition of that method of hunting 
laid down in Article 8. 
5. The questions referred for a preliminary ruling 
31 The Conseil d’État (Council of State) submits the following two questions: 
1 — Must Article 9(1)(c) of Directive 2009/147/EC of the European Parliament 
and of the Council of 30 November 2009 be interpreted as precluding Member 
State from authorising the use of means, devices, methods of capture or killing 
capable of leading, even minimally and on a strictly temporary basis, to by-catch? 
Where appropriate, what criteria, relating in particular to the limited proportion or 
size of such by-catch, to what is in principle the non-lethal nature of the 
authorised hunting process and to the obligation to release without serious harm 
the specimens captured accidentally, may be applied in order for the selectivity 
criteria laid down in that provision to be considered to be satisfied? 
2 — Must Directive [2009/147/EC] of 30 November 2009 be interpreted as 
meaning that the objective of preserving the use of traditional methods and means 
of hunting birds, for recreational purposes, and in so far as all the other conditions 
placed on such a derogation by subparagraph c of that paragraph are satisfied, may 
justify the absence of another satisfactory solution within the meaning of 
Article 9(1), thus permitting a derogation from the principle laid down in Article 8 
that those methods and means of hunting are prohibited?