Judgment — ECLI:EU:C:2009:535
Date: 2009-09-10
Language of the case: English
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment
Concepts: General;Environment
Procedure: Action for failure to fulfil obligations - successful
Origin: Malta

Summary of the Judgment 1. Actions for failure to fulfil obligations – Right of the Commission to bring judicial proceedings – To be exercised at its discretion (Art. 226 EC; Council Directive 79/409, Art. 9) 2. Environment – Conservation of wild birds – Directive 79/409 – Opening and closing dates for hunting – Exceptions (Council Directive 79/409, recital 11 and Arts 7 and 9) 1. Article 9(1) of Directive 79/409 on the conservation of wild birds, as amended, in respect of 2004 to 2006, by Regulation No 807/2003, and, in respect of 2007, by Directive 2006/105, does not have the effect – and could not legally have the object – of making the Commission’s ability to bring an action for infringement subject to the submission, by the Member State concerned, of the annual report required under that provision. On the contrary, Article 9(4) of the Directive requires the Commission, on the basis of the information available to it, and in particular the information communicated to it pursuant to Article 9(3), at all times to ensure that the consequences of these derogations are not incompatible with the Directive. Furthermore, making the initiation by the Commission of proceedings for a declaration of failure to fulfil obligations subject to the prior communication of a report by the Member State concerned would be likely to harm the role of the Commission as guardian of the Treaties, by virtue of which it alone is empowered to decide whether it is appropriate to bring such proceedings and to determine the grounds on which they should be initiated. (see paras 22-23) 2. One condition which must be met in order for the Member States to be able to apply the derogation laid down in Article 9(1) of Directive 79/409 on the conservation of wild birds, as amended, in respect of 2004 to 2006, by Regulation No 807/2003, and, in respect of 2007, by Directive 2006/105, is that there should be no other satisfactory solution. That condition is not satisfied when the hunting season under a derogation coincides, without need, with periods in which the Directive aims to provide particular protection. There is no such need, in particular, if the sole purpose of the derogation authorising hunting is to extend the hunting seasons for certain species of birds in territories which they already frequent during the hunting seasons fixed in accordance with Article 7 of the Directive. There is also no such need when the species concerned are actually present in autumn in the areas open for spring hunting, even if they are present in considerably smaller numbers than in the spring, provided that those numbers are not inconsiderable. Nevertheless, the sole finding that those species are in fact present in autumn in the areas open for spring hunting is not sufficient for it to be held that there is another ‘satisfactory solution’ within the meaning of Article 9(1) of the Directive. The Community legislature, by using the expression ‘other satisfactory solution’, did not intend to prevent use of the derogation laid down in Article 9(1)(c) of the Directive where any opportunity whatsoever exists of hunting during the open seasons authorised under Article 7 of the Directive, but sought to permit derogations from that provision, only so far as necessary, where hunting opportunities during those periods, in the present case in the autumn, are so limited as to upset the balance sought by the Directive between the protection of species and certain leisure activities. It is apparent, however, from the provisions of Article 9 of the Directive, which refer to the strictly supervised conditions for that derogation and the selective basis on which birds are captured, and, moreover, from the general principle of proportionality, that the derogation of which a Member State intends to make use must be proportionate to the needs which justify it. It follows that the finding that there is no other satisfactory solution in the present case, since there are insufficient hunting opportunities in autumn, far from opening up, without limit, the possibility of authorising hunting in spring, does so only so far as it is strictly necessary and provided that the other objectives pursued by the Directive are not jeopardised, in particular if it is ensured that the population of the species concerned is maintained at a satisfactory level and that, if that condition is not fulfilled, hunting of birds cannot, in any event, be considered judicious and, accordingly, acceptable exploitation for the purposes of the 11th recital in the preamble to the Directive. (see paras 49-51, 54-59)