62002CC0182_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I ─ Introduction
1.
This reference for a preliminary ruling from the French Conseil d'État, in its capacity as supreme court for contentious administrative proceedings, seeks to dispel any doubts as to the interpretation of certain provisions of the Wild Birds Directive.
(2)
The questions referred call specifically for an examination of the role which the Directive attributes to the cultural and recreational activity that is hunting, and for guidance on whether, under Article 9 of the Directive, that activity may be carried out even during periods when birds are entitled to increased protection, namely, during rearing, reproduction or return migration, within the meaning of the terms used in Article 7(4) of the Directive.
II ─ Facts and procedure
2.
The Ligue pour la protection des oiseaux sauvages (League for the Protection of Wild Birds;
"the League"
), together with other organisations for the protection of birds,
(3) applied to the Conseil d'État for the annulment of Decree No 2000-754 of 1 August 2000 relating to the dates for the hunting of migratory birds and waterfowl and amending the Rural Code (Code Rural) ( "the Decree"
).
(4)
Two hunting associations
(5) have intervened in the proceedings to support the validity of the Decree.
3.
The Conseil d'État granted the application to annul Article 1 of the contested legislation which fixed the opening and closing dates for hunting certain species (ducks, rails and coots, some limicolae, snipe, woodcock, water rail and scoter, and turdidae ( "canards, rallidés et foulques, certains limicoles, les bécassines, les bécasses des bois, les râles d'eau et les macreuses, et les turdides"
)) outside the periods which would have resulted from the application of Article 7(4) of the Directive, but held that it was lawful to authorise both the hunting of limicolae from 10 August and the postponement, until 10 February, of the closing date for pigeons and doves.
4.
However, the Conseil d'État did not rule on the lawfulness of Article 2 of the Decree which inserts the following wording into the Rural Code:
"The derogations mentioned in the fifth paragraph of Article L 224-2 may be granted by prefects (departmental heads of government) to permit the capture, keeping or other judicious use of geese, wood pigeons and thrushes in small numbers, until 20 February.
An order of the Minister responsible for hunting ... shall specify the conditions in which those activities may be authorised and the procedures for the checks to be implemented. The Minister shall also determine, by species, ... the maximum number of birds which may be taken in each department.
Prefects shall establish ... the maximum number of birds which may be taken by the beneficiaries of the derogation.
"
III ─ Directive 79/409
5.
The Directive is based on a disturbing premiss: the decline in the population of a number of wild birds naturally occurring in the European territory of the Member States.
This situation represents
"a serious threat to the conservation of the natural environment, particularly because of the biological balances threatened thereby"
.
(6)
Effective bird protection is seen as
"typically a trans-frontier environment problem entailing common responsibilities"
, particularly in the case of migratory species which
"constitute a common heritage"
.
(7)
The object of such conservation is identified as
"the long-term protection and management of natural resources as an integral part of the heritage of the peoples of Europe"
, and
"the maintenance and adjustment of the natural balances between species as far as is reasonably possible"
.
(8)
6.
The Directive lays down a number of general obligations regarding the maintenance of the population levels of all species of protected birds and the preservation, maintenance and re-establishment of their habitats (Articles 2 and 3). Later provisions contain more specific obligations on the protection of endangered and migratory species (Article 4) and wild birds, and prohibit the marketing of, and limit the hunting of, protected species (Articles 5 to 8).
7.
Articles 5 to 7 allow the Member States to authorise the hunting of the birds listed in Annex II to the Directive, provided that the conservation of such birds is not jeopardised as a result.
"Owing to their population level, geographical distribution and reproductive rate throughout the Community"
(Article 7(1)), hunting is prohibited during the rearing season and during the various stages of reproduction, or, in the case of migratory species, during the period of reproduction and during their return to their rearing grounds (Article 7(4)).
8.
Article 9(1) of the Directive provides:
"1.
Member States may derogate from the provisions of Articles 5, 6, 7 and 8, where there is no other satisfactory solution, for the following reasons:
(a)
─
in the interests of public health and safety,
─
in the interests of air safety,
─
to prevent serious damage to crops, livestock, forests, fisheries and water,
─
for the protection of flora and fauna;
(b)
for the purposes of research and teaching, of re-population, of re-introduction and for the breeding necessary for these purposes;
(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.
"
9.
Article 9(2) stipulates:
"2.
The derogations must specify:
─
the species which are subject to the derogations,
─
the means, arrangements or methods authorised for capture or killing,
─
the conditions of risk and the circumstances of time and place under which such derogations may be granted,
─
the authority empowered to declare that the required conditions obtain and to decide what means, arrangements or methods may be used, within what limits and by whom,
─
the controls which will be carried out.
"
10.
Pursuant to Article 9(3), Member States must send a report to the Commission each year on the implementation of that article. The Commission
"shall at all times ensure that the consequences of these derogations are not incompatible with this Directive"
and, to that end,
"it shall take appropriate steps"
(Article 9(4)).
IV ─ The observations submitted to the Court
11.
In the opinion of the League, the applicant in the main proceedings, and of the parties which support its claims, Article 9(1) of the Directive must be construed so as to exclude hunting during the period of special protection. The League contends that such an activity can never constitute
"judicious use"
because other satisfactory solutions exist. However, if the activity is permitted, it must be subject to very strict conditions, a requirement which the French legislation does not fulfil.
12.
The Hunting Union argues that Article 9(1) provides wide scope for derogating from the basic system of protection laid down in the Directive and, in particular, from the provisions of Article 7.
Such derogations, however, must be subject to the criteria set out in the Directive.
In view of the fact that the hunting of wild birds and waterfowl is subject to more stringent monitoring than the hunting of other birds, it is only a derogation that could permit the hunting of such birds, within strict limits, outside the opening and closing dates for hunting set in accordance with Article 7(4).
Accordingly, the only alternative would be to prohibit hunting.
13.
The French Government is of the view that, owing to the requirement that there must be no other satisfactory solution, Article 9(1) may apply only to the hunting of birds which are present in a particular territory during the period of special protection referred to in Article 7(4). In addition, compliance with the conditions laid down in Article 9(2) must be specific and precise, having regard, in each particular situation, to economic and recreational needs, as well as to ecological, cultural and scientific requirements.
14.
In the opinion of the Greek Government, recreational needs alone are not a sufficient justification for derogating from the system of protection for birds.
15.
The Commission claims that the expression
"other judicious use"
includes hunting. As concerns the conditions under which hunting may be carried out, by way of derogation, the Commission cites the requirements set out in Article 9 of the Directive.
V ─ The questions referred for a preliminary ruling
16.
The Conseil d'État taking the view that the question whether Article 2 of Decree No 2000-754 is valid depends on the interpretation of Article 9(1) of the Directive, decided to stay the proceedings and to refer the following questions for a preliminary ruling:
"1.
Does Article 9(1)(c) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds permit a Member State to derogate from the opening and closing dates for hunting set in the light of the objectives specified in Article 7(4) thereof?
2.
If so, what are the criteria which make it possible to establish the limits of that derogation?
"
VI ─ Analysis of the questions referred for a preliminary ruling
On the first question
17.
By the first question, the Conseil d'État seeks to ascertain whether the exceptional arrangements set out in Article 9 of the Directive may be relied upon to authorise certain hunting activities. As the French Government points out, in order to establish whether Article 9(1)(c) of the Directive permits derogations from the opening and closing dates for hunting, fixed in accordance with the aims of Article 7(4), it is necessary to determine whether the derogations from the principle of total protection can be applied to hunting itself.
In the light of the Directive's purpose, scheme and spirit of conservation, and in view of the terms used in Article 7(4) and Article 9(1) and (2), I do not believe that to be the case.
Two separate approaches lead me to that conclusion.
The first is that hunting is not one of the reasons set out in Article 9(1); the second is that hunting for sport is not capable of fulfilling the requirements laid down in paragraphs 1 and 2 of Article 9.
18.
Article 7(4) prohibits hunting during the rearing season, during reproduction and dependency, and during the return of migratory birds to their rearing grounds (expression of the
"principle of total protection"
).
For the purposes of the case before the Court, Article 9(1) permits derogations from the principle of total protection, provided that there is no other satisfactory solution,
"to permit, under strictly supervised conditions and on a selective basis, the capture, keeping or other judicious use of certain birds in small numbers"
(subparagraph (c)).
19.
It is clear, as the Commission points out, that nothing in the disputed legislation necessarily leads to the exclusion of hunting as a merely recreational activity from the criteria for the application of Article 9(1)(c). Furthermore, some approaches could lead to the contrary conclusion.
20.
From a teleological point of view, the purpose of the Directive is not to establish a general prohibition on hunting, but rather to control its practice. The eighth recital in the preamble to the Directive refers to the
use of resources as far as is reasonably possible
, while the eleventh recital classifies hunting as
"acceptable exploitation[,] where certain limits are established and respected"
.
Such terminology is close in meaning to the concept of
"judicious use"
in Article 9(1)(c).
21.
Moreover, the Court appears to have upheld that analysis on a number of occasions.
22.
In
Commission
v
Italy
,
(9)Associazione Italiana per il WWF and Others
,
(10) and
Ligue royale pour la protection des oiseaux and Others
,
(11) the Court analysed whether national hunting provisions were compatible with Article 9(1)(c), from which it is clear that the Court considered hunting to be one of the objectives capable of justifying an authorised derogation.
23.
To my mind, an alternative interpretation is preferable. Article 9(1)(c) permits, on the conditions set out therein, the hunting of a limited number of birds during the period of particular vulnerability, but it does not permit hunting as a recreational activity.
24.
It is clear simply from reading Article 9(1) that, firstly, the derogations it provides for pursue objectives which are deemed to be more important in relation to the general principle of total protection of certain species. Those derogations are intended to protect public health and safety, and air safety, to prevent serious damage to crops, livestock, forests, fisheries and water, and to safeguard flora and fauna (subparagraph (a)).
In those cases, strict compliance with the principles of conservation set out in Articles 5 to 8 of the Directive would disproportionately jeopardise other legally protected interests, equally worthy of protection. It is also possible to derogate for the purposes of research, teaching, repopulation, and reintroduction and breeding (subparagraph (b)). In such cases, the principle of total protection gives way to the interests of activities which are designed to guarantee the better longer-term conservation of a species.
25.
In addition, it follows from the wording of Article 9(1) that all the activities referred to are quite specific. The thirteenth recital in the preamble states that,
"because of the importance which may be attached to certain specific situations, provision should be made for the possibility of derogations on certain conditions and subject to monitoring by the Commission"
. Article 9(1) stipulates that derogations may be established provided that
there is no other satisfactory solution
, and, in relation to subparagraph (c), that capture, keeping or other judicious use must be effected
in small numbers under strictly supervised conditions and on a selective basis
.
Article 9(2) attaches a series of requirements regarding the criteria which the derogations must meet and limits them to
"what is strictly necessary"
, under the supervision of the Commission.
(12)
26.
Now, the sole purpose of hunting as a sporting activity is recreation for those who participate in it, a purpose which it would be difficult to regard as taking precedence over the principle of protection enshrined in Article 7(4). Moreover, as such, it displays none of the attributes of a clearly defined action.
It would, therefore, be astounding if recreational hunting were included among the cases set out in Article 9(1). Its inclusion would be inconsistent with the terminology of the Directive, which refers frequently to hunting, notably in Articles 5, 7 and 8, where the main points of the substantive provisions from which it is possible to derogate under Article 9 are set out.
It seems unusual that the activity which probably constitutes the principal risk factor in the conservation of certain species should be described ambiguously, and alongside other more suitable activities, as
"judicious use"
.
Article 9(1)(c) of the Directive covers a number of exceptional cases which the Community legislature was unwilling or unable to provide for explicitly. Had the legislature wished to include hunting for recreational purposes, it would have mentioned it expressly.
That strict interpretation must also prevail in view of the exceptional nature of Article 9, construed in the light of the purpose of the Directive, which is to protect birds and not to regulate hunting. In other words, any uncertainties arising from ambiguous wording in that regard must be resolved in the manner which best promotes the aim of protection.
27.
Accordingly, it is my view that the terms used in, and the scheme of, the Directive are aimed at excluding hunting as a recreational activity from the case of
"judicious use"
in Article 9(1)(c). Naturally, that does not constitute a value judgment about hunting but is rather the result of applying a literal, systematic interpretation.
28.
There remain the arguments which can be inferred from the three judgments cited above.
In my opinion, some qualification of the weight of those arguments is required.
First, in none of those cases was any attempt made to establish whether hunting, as a merely recreational pursuit, is covered by any of the cases in Article 9(1)(c). Furthermore, the facts which gave rise to those proceedings had some noteworthy specific features.
In
Commission
v
Italy
, the Court only accepted that the capture and sale of birds, with a view to keeping them for use as live decoys or for recreational purposes in fairs and markets, may constitute judicious use authorised by Article 9(1)(c) outside the hunting season.
(13)
That such activity is of a different nature and lesser magnitude than hunting as a recreational activity is clear.
In keeping with the question referred, in
WWF Italiana
, the Court confined itself to providing guidance on the conditions in which Article 9 of the Directive authorises the Member States to derogate from the general prohibition on hunting protected species laid down by Articles 5 and 7 thereof.
Finally, in
Ligue royale
, the Court held that the capture of certain protected species in order to enable fanciers to stock their aviaries or to obviate the problems of consanguinity in recreational bird breeding could amount to judicious use for the purposes of Article 9(1)(c) of the Directive. Again, that case concerned an activity whose aim and magnitude differ from those of hunting.
29.
In those three judgments, the Court drew attention to the exceptional nature of the arrangements which may be implemented under Article 9 of the Directive. In that regard, it is significant that the Court did not find, in any of the cases, that the national legislation fulfilled the stringent requirements of the Community provision.
30.
The Court has held that, although Article 9(1) authorises wide derogations from the general system of protection, it must be applied appropriately in order to deal with precise requirements and specific situations.
(14)
Therefore, the Directive must be transposed in such a way as to guarantee that the capture of certain species of birds will be limited to the strict minimum and that the period of capture will not coincide unnecessarily with periods in which the Directive aims to provide particular protection.
(15)
31.
Furthermore, even if accepting, just for the sake of argument, that hunting for recreational purposes may be regarded as
"judicious use"
within the meaning of Article 9(1)(c), it does not in itself appear capable of fulfilling another condition governing the exceptional arrangements which may be instituted under Article 9, namely that there must be an overriding need for it owing to the lack of another satisfactory solution.
32.
At first sight, it is difficult to imagine, even in the abstract, the circumstances in which one recreational activity may not be replaced by another sufficiently satisfactory one. The fact that certain birds may not be hunted during the period of special vulnerability can be compensated for by hunting during the rest of the year, or by another recreational pursuit.
33.
The Hunting Union and the French Government have each put forward explanations.
In the view of the Hunting Union, since the hunting of wild birds and waterfowl is subject to particularly stringent monitoring, only a derogation could permit such hunting, within strict limits, outside the opening and closing dates for hunting fixed in accordance with Article 7(4). The only alternative would be to prohibit hunting. At the hearing, the Hunting Union also claimed that authorising hunting during the period of special protection might be the only satisfactory solution capable of compensating for the unreliability of the scientific studies which are used as a basis for establishing the opening and closing dates for hunting.
For its part, the French Government claims that Article 9(1)(c) does not apply to hunting except in cases where certain species are present in a particular territory only during their reproductive phase and not at any other time of the year. In such circumstances, the only satisfactory solution would be to hunt those species during that period.
34.
Those arguments, besides finding no support at all in the wording of the legislation, seem to me most unconvincing.
Neither legislative rigour nor an apparent lack of scientific certainty can render it necessary to hunt certain species during the period of maximum protection in a field where the law gives precedence to the conservation of those species. On the contrary, current practice favours the application of the precautionary principle (or the precautionary principle and the principle that preventive action should be taken, to use the terminology of Article 174(2) EC) in cases where available scientific data do allow of a full evaluation of the risk with a view to achieving a high level of protection of the environment and of human, animal and plant health.
(16)
Likewise, to regard the hunting of certain species during their reproductive cycle as necessary in so far as they are present in the territory only during that period is tantamount to subverting the priorities of the Directive.
35.
The obscure or contrived nature of the arguments that have been put forward to justify the need for hunting during the period of vulnerability confirms my initial impression that Article 9(1) is not designed to permit derogations from the general prohibition in the interests of hunting as a recreational pursuit.
36.
Accordingly, the reply to the first question referred by the Conseil d'État must be that Article 9(1)(c) of the Directive does not permit a Member State, in the interests of hunting as a recreational pursuit, to derogate from the opening and closing dates for hunting fixed in the light of the objectives specified in Article 7(4) of the directive.
On the second question
37.
By its second question, and in the event of an affirmative reply to the first question, the referring court seeks guidance on the criteria to be used to establish the limits of the derogations that may be authorised.
38.
If the Court should give a reply to the first question which differs from the one that I have proposed, I should like to make the following observations.
39.
It appears from the wording of Article 9 of the Directive that the exceptional arrangements set out therein may be applied only when three conditions are met:
(a)
there is no other satisfactory solution;
(b)
the hunting (defined as
"judicious use"
, in accordance with the reply to the first question) of certain birds in small numbers is carried out in strictly supervised conditions and on a selective basis (Article 9(1)(c)); and
(c)
details are given of:
─
the species covered by the derogations, the means or methods authorised for capture or killing, the conditions of risk and the circumstances of time and place in which such derogations may be granted;
─
the authority empowered to declare that the required conditions obtain and to decide on the means, arrangements or methods that may be used, on what limits are to apply, and on who the authorised persons shall be; and
─
the controls which must be carried out.
40.
In
Commission
v
Belgium
and
Commission
v
Italy
, the Court followed a similar line of reasoning and declared that the possibility of establishing derogations under Article 9 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 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. The Court indicated that, although Article 9 authorises wide derogations from the general system of protection, it must be applied appropriately in order to deal with precise requirements and specific situations.
(17)
The Court considered it useful to point out that Article 2 of the Directive requires the Member States to take the requisite measures to maintain the population of all bird species at a level, or to adapt it to a level, which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements. Therefore, although Article 2 does not constitute an autonomous derogation from the general system of protection, it none the less shows that the Directive takes into consideration, on the one hand, the necessity for effective protection of birds
(18) and, on the other hand, the requirements of public health and safety, the economy, ecology, science, farming and recreation.
(19)
41.
In another line of thought, the Court also noted that where a general legal context ensures the full application of the Directive in a clear and precise manner, the transposition of the Directive into national law does not require the Community provisions to be incorporated in precisely the same words in a specific express provision, such general legal context being sufficient.
42.
Finally, before I draw this discussion of case-law to a close, I should like to point out that a faithful transposition of the letter and spirit of a directive into national law becomes particularly important where it concerns the protection the common heritage which is entrusted to the Member States in their respective territories.
(20)
43.
In addition to the question referred in clear terms by the Conseil d'État, there is the question whether a rule of national law, like the one implemented in France, conforms to the Directive.
44.
While refraining from responding to a query which differs from the one posed by the referring court, it is, nevertheless, worth noting that, with regard to the conservation of wild birds, the criteria which the Member States must meet in order to derogate from the prohibitions laid down in the Directive must be reproduced in specific national provisions.
(21)
To that end, the measures adopted must refer in detail to the factors mentioned in Article 9(1) and (2).
(22)
It suffices to conclude that the French legislation, which is the subject of the main proceedings, does not explain why there is no other satisfactory solution to the hunting which it authorises during the period of maximum protection.
45.
If the reply to the first question is in the affirmative, it would be appropriate to state, in answer to the second question, that the exceptional arrangements under Article 9(1) of the Directive apply to hunting where:
(a)
there is no other satisfactory solution;
(b)
it involves certain birds in small numbers in strictly supervised conditions and on a selective basis; and
(c)
details are given of:
─
the species which are covered by the derogations, the means or methods authorised for capture or killing, the conditions of risk and the circumstances of time and place in which such derogations may be granted;
─
the authority empowered to declare that the required conditions obtain and to decide on the means, arrangements or methods that may be used, on what limits are to apply, and on who the authorised persons shall be; and
─
the controls which must be carried out.
VII ─ Conclusion
46.
In the light of the foregoing considerations, I propose the following reply to the questions referred by the Conseil d'État:
Article 9(1)(c) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds does not permit a Member State, in the interests of hunting as a recreational pursuit, to derogate from the opening and closing dates for hunting fixed in the light of the objectives specified in Article 7(4) thereof.
(1) .
(2)
Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds ( "the Directive"
) (OJ 1979 L 103, p. 1).
(3)
The Association pour la protection des animaux sauvages (Association for the Protection of Wild Animals) and the Rassemblement des opposants à la chasse (Assembly of Opponents of Hunting).
(4)
Journal officiel de la République française
2000 No 12178 of 5 August 2000.
(5)
The Union nationale des fédérations départementales de chasseurs (National Union of Departmental Hunting Federations;
"the Hunting Union"
) and the Association nationale des chasseurs de gibiers d'eau (National Association of Waterfowl Hunters).
(6)
Second recital in the preamble to the Directive.
(7)
Third recital in the preamble.
(8)
Eighth recital in the preamble.
(9)
Case 262/85 [1987] ECR 3073 ( "Commission
v
Italy "
).
(10)
Case C-118/94 [1996] ECR I-1223 ( "WWF Italiana "
).
(11)
Case C-10/96 [1996] ECR I-6775 ( "Ligue royale "
).
(12)
See the judgments in Case 247/85
Commission
v
Belgium
[1987] ECR 3029, paragraph 7, and Case 412/85
Commission
v
Germany
[1987] ECR 3503, paragraph 18.
(13)
Commission
v
Italy
, paragraph 38.
(14)
Judgments in
Commission
v
Italy
, paragraph 7, and
WWF Italiana
, paragraph 21.
(15)
Judgment in
Commission
v
Italy
, paragraph 39 in fine.
(16)
See the Communication from the Commission on the precautionary principle (COM/2001/1 final).
(17)
See paragraph 7 of the judgment in each case.
(18)
W.G. Sebald, in his novel
Austerlitz
(Anagrama, Barcelona, 2002, pp. 84 and 85), describes the skill with which certain birds,
"holding on with their beaks, would climb up the bars and sometimes perform all manner of acrobatic turns on their way down, would fly in and out through the open windows or jump and run along the ground, always active and, one had the impression, always busy doing something. Most of them resembled humans in many respects. One could hear them breathe, laugh, sneeze and yawn. They would clear their throats before starting to talk their language"
. (Translated into English from the Spanish translation)
(19)
See paragraph 8 of the judgment in each case.
(20)
Judgments in
Commission
v
Italy
, paragraph 9;
Commission
v
Belgium
, paragraph 9;
Commission
v
Netherlands
[1987] ECR 3989, paragraph 5; and [Commission
v
France
, paragraph 5].
(21)
Judgments in Case C-339/87
Commission
v
Netherlands
[1990] ECR I-851, paragraph 28, and
WWF Italiana
, paragraph 22.
(22)
Judgment in
WWF Italiana
, paragraph 26.