Opinion of the Advocate General — ECLI:EU:C:2006:116
Date: 2006-02-16
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 1. Environment – Conservation of wild birds – Directive 79/409 – Implementation by Member States (Council Directive 79/409, Art. 9(1)(c)) 2. Environment – Conservation of wild birds – Directive 79/409 – Implementation by Member States (Council Directive 79/409, Art. 9(1)(c)) 1. Article 9(1)(c) of Directive 79/409 on the conservation of wild birds requires the Member States, irrespective of the internal allocation of powers prescribed by the national legal system, upon adoption of measures implementing that provision to ensure that, in all cases of application of the derogation provided for therein and for all the protected species, authorised hunting does not exceed a ceiling consistent with the restriction on that hunting to small numbers imposed by that provision, and that ceiling must be determined on the basis of strict scientific data. Irrespective of the internal allocation of powers prescribed by the national legal system, the Member States are required to provide for a legislative and regulatory framework ensuring that the hunting of birds is carried out only in compliance with the condition relating to ‘small numbers’ laid down in Article 9(1)(c) of the directive, and on the basis of strict scientific data, irrespective of the species concerned. (see paras 28-29, operative part 1) 2. In order to permit the competent authorities to resort to the derogations laid down in Article 9 of Directive 79/409 on the conservation of wild birds only in a manner which complies with Community 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. In particular, those national implementing provisions concerning the ‘small numbers’ referred to in Article 9(1)(c) of that directive must enable the authorities responsible for authorising hunting derogations in respect of birds of a given species to rely on criteria which are sufficiently precise as to the quantitative ceilings to be complied with. Furthermore, by the provisions implementing Article 9(1)(c), the Member States are required to ensure that, irrespective of the number and identity of the authorities within their territory responsible for applying that provision, the amount of authorised hunting derogations in respect of each protected species by each of those authorities does not exceed the ceiling compatible with the restriction on that hunting to ‘small numbers’, fixed for that species for the entire national territory. Accordingly, where the application of the provision in question is delegated to entities within a State, the applicable legislative and regulatory framework must ensure that the amount of hunting of birds which may be authorised by those entities remains, for the entire national territory, within the limit of ‘small numbers’ imposed by that provision. Finally, that obligation on the Member States to ensure that hunting of birds is carried out only in ‘small numbers’, in accordance with Article 9(1)(c), requires that the administrative procedures provided for are organised in such a way that both the decisions of the competent authorities authorising hunting derogations and the manner in which those decisions are applied are subject to effective control exercised in a timely manner. The national procedural framework must also guarantee that the conditions attached to those decisions are complied with. A control mechanism under which annulment of a decision authorising a hunting derogation adopted in breach of Article 9 of the directive or declaration of a breach of the conditions attached to a decision authorising such hunting would take effect only on expiry of the period laid down for carrying out that hunting would render redundant the system of protection established by the directive. (see paras 33, 36, 40-41, 44-45, 47, operative part 2-4)