Opinion of the Advocate General — ECLI:EU:C:2007:8
Date: 2007-01-11
Language of the case: German
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 - unfounded
Origin: Austria

Summary of the Judgment 1. Environment – Conservation of wild birds – Directive 79/409 – Transposition without legislative action – Limits (Council Directive 79/409) 2. Environment – Conservation of wild birds – Directive 79/409 – Scope (Council Directive 79/409, Arts 1 and 11) 3. Environment – Conservation of wild birds – Directive 79/409 – Implementation by Member States (Council Directive 79/409, Art. 9(1)(a) and (2)) 4. Environment – Conservation of wild birds – Directive 79/409 – Obligation to prohibit hunting during certain periods of particular bird vulnerability (Council Directive 79/409, Art. 7(4)) 5. Environment – Conservation of wild birds – Directive 79/409 – Opening and closing dates for hunting (Council Directive 79/409, Art. 9(1)(c)) 6. Environment – Conservation of wild birds – Directive 79/409 – Implementation by Member States (Council Directive 79/409, Art. 8 and Annex IV) 1. The transposition of Community legislation into national law does not necessarily require the relevant provisions to be enacted in precisely the same words in a specific express legal provision and that a general legal context may be sufficient for the purpose if it actually ensures the full application of the directive in a sufficiently clear and precise manner. However, faithful transposition is particularly important in the case of Directive 79/409 on the conservation of wild birds, where management of the common heritage is entrusted to the Member States in their respective territories. (see paras 89, 92) 2. Article 11 of Directive 79/409 on the conservation of wild birds, which does no more than lay down a specific obligation requiring the Member States to see that the introduction of species of birds which do not occur naturally in the wild state in the European territory of the Member States does not prejudice the local flora and fauna, cannot be regarded as a legal basis justifying derogation from the obligations of protection which the Member States owe under Article 1 of the directive and relate to all species of birds naturally occurring in the wild state in the European territory of the Member States, that is to say, as regards each of those States, both to native species and to species which occur only in other Member States. The importance of complete and effective protection of wild birds throughout the Community, irrespective of the areas they stay in or pass through, causes any national legislation which delimits the protection of wild birds by reference to national fauna to be incompatible with the directive. (see paras 101-103) 3. Whilst it is true that the prevention of damage to vines can in principle justify the taking of derogating measures, pursuant to the third indent of Article 9(1)(a) of Directive 79/409 on the conservation of wild birds, that provision does not provide a legal basis for a species being entirely removed – even if the removal is temporally limited – from the system of protection laid down by the directive. Removing a species of bird entirely from that system, even for a defined period, could jeopardise the very existence of that species. Thus, the Member States are authorised to derogate from the system of protection for wild birds only if they observe the requirements set out in Article 9(2) of the directive. (see paras 113-115) 4. The system of protection against hunting laid down in Article 7(4) of Directive 79/409 on the conservation of wild birds is defined broadly, by reference to the specific biological characteristics of the species concerned, given that it concerns, in addition to the rearing season, the various stages of reproduction and rearing. Only such a view corresponds to the objective of Article 7(4), which is to secure a complete system of protection in the periods during which the survival of wild birds is particularly under threat. Any action during the periods that are connected with the reproduction of birds is liable to affect their reproduction, even if only a part of their population is concerned. That is also true of the mating season, during which the species concerned are particularly exposed and vulnerable. That season thus forms part of the period during which, in principle, all hunting is prohibited. (see paras 192-195) 5. Article 9(1)(c) of Directive 79/409 on the conservation of wild birds allows a Member State to derogate from the opening and closing dates for hunting which result from the taking into account of the objectives listed in Article 7(4) of the directive. In that regard, the hunting of wild birds for recreational purposes during the periods mentioned in Article 7(4) of the directive may, subject to compliance with the requirements laid down in Article 9(2), constitute a ‘judicious use’ within the meaning of Article 9(1)(c). However, the burden of proof regarding compliance with these requirements in respect of each derogation rests with the national authority taking the decision. Moreover, when adopting measures transposing the latter provision, Member States must 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, and that ceiling must be determined on the basis of strict scientific data. In order for the directive to be transposed in accordance with Community law, the authorities competent to authorise derogations in respect of birds of a given species must be able to rely on criteria which are sufficiently precise as to the quantitative ceilings to be complied with. It is therefore the task of the competent authorities of the Member State concerned to ensure, with sufficient legal precision and on the basis of recognised scientific data, that the quantitative ceiling is not in any event exceeded and, therefore, that the species covered are fully protected. (see paras 196-199, 201, 225) 6. The fact that, in a Member State, particular hunting methods or destructive practices prohibited by Directive 79/409 on the conservation of wild birds are unknown does not release the Member State in question from its obligation to adopt laws or regulations in order to ensure that the provisions of the directive are adequately transposed. The principle of legal certainty requires that the prohibitions which it imposes must be reproduced in mandatory legal instruments. (see paras 280-281)