Opinion of the Advocate General — ECLI:EU:C:2001:99
Date: 2001-02-15
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - inadmissible;Action for failure to fulfil obligations - decision unnecessary
Origin: Italy

summary of the complaints, expressed in comprehensive fashion, on the understanding that the reasoned opinion which follows is to set out those complaints as a coherent and detailed statement of the reasons for which the Commission is convinced that the State concerned has failed to fulfil its obligations under Community law. (21) 67. It should be noted that the objection based on improper transposition of Article 9 of the birds directive, made by the Commission in its application, was not only contained in the additional reasoned opinion but had already been expressed briefly and generally in the formal letter of notice of 30 November 1993. In that letter, the Commission expressly referred to some of the conditions required for applying the derogations laid down in Article 9 of the birds directive, for the purpose of receiving the Italian authorities' observations in particular as regards the general inadequacy of their regulations on the subject. The fourth and fifth paragraphs of that letter read as follows: 'To that it should be added that Article 9(2) of the birds directive of the Council provides that, for those cases falling within the scope of Article 9(1), an authority shall be empowered to declare that the conditions set out in that paragraph obtain and to decide where and for which birds hunting may exceptionally be authorised. The authorities empowered under Article 9(2) of the abovementioned directive must also see whether there is any other satisfactory solution that makes it possible to resolve the particular problem without the need to authorise a derogation. 68. I consider that the beginning of that passage ('To that it should be added) shows that the Commission intended to state an objection differing from that set out earlier in the same document. Likewise, the wording of this passage shows explicitly that the Commission intended to refer to a more general matter than the possibility of hunting and capturing certain species notwithstanding the provisions of the directive, meaning the wider matter of the detailed rules for applying the derogations provided in Article 9 and of seeing whether there were any solutions other than a derogation. 69. There is no ambiguity of meaning or scope in the objections raised by the Commission. In the way in which they have been stated, both in the formal letter of notice and in the reasoned opinion and in the Commission's application, they have moreover allowed the Italian authorities to make a full submission of their observations regarding both objections. 70. Thus, by letter of 21 March 1997, in reply to the formal letter of notice, the Italian authorities communicated the final version of a regulatory instrument intended to resolve the specific matter of the possibility of hunting the protected species and also announced the forthcoming adoption of a general instrument to transpose Article 9 of the birds directive. The Italian authorities then acknowledged that the matter of transposing Article 9 was an objection which had been voiced long since when, in the third paragraph of that letter, they state that 'this instrument of guidance puts an end to the objection voiced against us long ago by the European Commission for improperly transposing Article 9 of Directive 79/409 regarding derogations. And, lastly, in its letter replying to the reasoned opinion of 7 August 1997, the Italian Government presented the adoption of the decree of 27 September 1997 as a measure intended to adapt the national law in order to take account of the objection relating to the general problem of the inadequate transposition of Article 9 of the birds directive. 71. This shows that the Commission gave the Italian Republic the possibility of complying with the obligations stemming from Articles 5, 7 and 9 of, and from Annex II to, the birds directive and of effectively presenting its observations on those objections during the pre-litigation phase. The objection of inadmissibility must therefore be rejected. Substance 72. The Court has consistently held that 'the possibility provided for in Article 9 of derogating from the restrictions on hunting, as well as from the other restrictions and prohibitions contained in Articles 5, 6 and 8 of the directive, is subject to three conditions. First, the Member State must restrict the derogation to cases in which there is no other satisfactory solution. Secondly, the derogation must be based on at least one of the reasons listed exhaustively in Article 9(1)(a), (b) and (c). Thirdly, the derogation must comply with the precise formal conditions set out in Article 9(2), which are intended to limit derogations to what is strictly necessary and to enable the Commission to supervise them. Although Article 9 therefore authorises wide derogations from the general system of protection, it must be applied appropriately in order to deal with precise requirements and specific situations. (22) 73. The Court has also held that the essential features of Article 9 of the birds directive must be transposed clearly, completely and unequivocally. (23) Those essential features include confirmation that there is no satisfactory alternative to the derogation envisaged and compliance with the provisions of Article 9(2) of the birds directive. 74. It should be observed that the essential features of Article 9 of the birds directive have not been transposed by the Italian legislature as regards the derogations laid down in Article 9(a) and (b). 75. The decree of 27 September 1997 provides expressly that the derogation arrangements introduced relate only to the situation envisaged by Article 9(c). 76. According to the preamble to that decree, the derogations laid down in Article 9(a) and (b) of the birds directive are governed by the third paragraph of Article 2 and by Article 19 of Law No 157/92. 77. It is not in dispute that those national provisions do not define either the conditions or the detailed rules for exercise of the derogations, as envisaged by Article 9(2) of the birds directive. 78. Similarly, those national provisions do not state that use of the derogations laid down is to be made subject to verification that there are no other satisfactory solutions. 79. The above arguments show that the Italian legislation does not transpose the substantive content of Article 9 of the birds directive. 80. I therefore propose that the Court should declare the Italian legislation in breach of Article 9 of the birds directive. Conclusion 81. I therefore propose that the Court should: (1) Declare 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, and of Annex II to, Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, 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 - by laying down rules concerning the conditions and detailed rules for the application of the derogation from the prohibitions laid down by that 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 has failed to fulfil its obligations under that directive; (2) Order the Italian Republic to pay the costs of the proceedings. 1: - Original language: French. 2: - OJ L 1979 103, p. 1 (otherwise referred to as 'the birds directive). 3: - Otherwise referred to as the 'species at issue. 4: - Hereinafter 'the protected species. 5: - Ordinary supplement No 41 to GURI No 46, of 25 February 1992 (hereinafter 'Law No 157/92). 6: - National Wild Fauna Institute (hereinafter 'the INFS). 7: - GURI No 38, of 16 February 1993 (hereinafter 'Circular 3/93). 8: - GURI No 98, of 29 April 1997 (hereinafter 'the decree of 21 March 1997). 9: - Italian sparrow. 10: - Tree sparrow. 11: - Starling. 12: - Hereinafter 'the INFS circular letter. 13: - GURI No 254, of 30 October 1997 (hereinafter 'the decree of 27 September 1997). 14: - Free translation of Article 2 of the decree of 27 September 1997. 15: - See, in particular, the judgments in Case 247/85 Commission v Belgium [1987] ECR 3029, paragraph 9; in Case 262/85 Commission v Italy [1987] ECR 3073, paragraph 9; in Case 252/85 Commission v France [1988] ECR 2243, paragraph 5; and in Case C-118/94 Associazione Italiana per il WWF and Others [1996] ECR I-1223, paragraph 20. 16: - See, in particular, the judgments in Associazione Italiana per il WWF and Others, paragraph 22, and in Case C-339/87 Commission v Netherlands [1990] ECR I-851, paragraph 28. 17: - See, in particular, the judgment in Associazione Italiana per il WWF and Others, paragraph 25. 18: - I should recall that, prior to adoption of this decree, the Italian Government had introduced a similar measure contra legem by way of circulars (see points 16 and 18 of this Opinion). 19: - On this, see the Italian Government's written response to the questions of the Court. 20: - On these various points, see in particular the judgment in Case C-96/95 Commission v Germany [1997] ECR I-1653, paragraphs 22 and 23. 21: - See, in particular, the judgment in Case C-279/94 Commission v Italy [1997] ECR I-4743, paragraphs 14 and 15. 22: - See, in particular, the judgments in Associazione Italiana per il WWF and Others, paragraph 21; Case 247/85 Commission v Belgium [1987] ECR 3029, paragraph 7, and Case 262/85 Commission v Italy [1987] ECR 3073, paragraph 7. 23: - See, in particular, the judgment in Associazione Italiana per il WWF and Others, paragraph 23.