61989J0334
REPORT FOR THE HEARING
in Case C-334/89 (
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)
I — Legal background
Directive 79/409/EEC is aimed at the conservation of all species of birds naturally occurring in the wild state in the European territory of the Member States. Its object is the protection, management and control of those species and their exploitation. The species mentioned in Annex I to the directive are the subject of the special conservation measures concerning their habitat in order to ensure their survival and reproduction in their area of distribution, pursuant to Article 4(1) of the directive. Articles 15 and 17 authorize the Commission, assisted by a special committee, to amend Annex I in order to adapt it to scientific and technical progress. Such an adaptation was made by Directive 85/411/EEC, the annex to which replaces Annex I to Directive 79/409.
The new Annex I lists 144 species, as against 74 in the original. Article 2 of Directive 85/411 provides that Member States must bring into force the implementing provisions before 31 July 1986 and inform the Commission forthwith.
II — Pre-litigation procedure
Since it received no notification of the provisions implementing Directive 85/411 in Italy, the Commission, by letter dated 26 March 1987, initiated the procedure under Article 169 of the EEC Treaty. There was no reply to that letter, and it issued a reasoned opinion on 12 September 1988. There was no reply to the reasoned opinion.
III — Written procedure
By application lodged at the Court Registry on 30 October 1989 the Commission, pursuant to Article 169 of the EEC Treaty, brought the matter of the alleged failure by the Italian Republic to fulfil its obligations in respect of the conservation of wild birds before the Court.
Upon hearing the Report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry.
IV — Forms of order sought
The Commission claims that the Court should:
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Declare that by not adopting by 31 July 1986 the measures needed to implement Commission Directive 85/411 of 25 July 1985 amending Council Directive 79/409 on the conservation of wild birds or in any event by not informing the Commission thereof, the Italian Republic has failed to fulfil its obligations under the EEC Treaty.
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Order the defendant to pay the costs.
The Italian Government contends that the Court should:
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Declare the action inadmissible or dismiss it;
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Order the applicant to pay the costs.
VI — Pleas in law and arguments of the parties
1.
The Commission states that Article 2 of Directive 85/411 requires Member States to inform it forthwith of the measures adopted to implement the directive. The Italian authorities have given the Commission no information on the subject. The Commission is therefore compelled to conclude that the Italian Republic has not adopted the measures necessary to comply with Directive 85/411, although the period laid down in Article 2 of the directive expired on 31 July 1986.
The Commission states that no matter when it discovers that a directive has not been implemented it may initiate proceedings for failure to fulfil obligations, even if it has already initiated similar proceedings in respect of other aspects of the same directive. In the present case Article 4 of Directive 79/409 provides that for each species of wild bird mentioned in Annex I Member States must define special protection areas and adopt special conservation measures. The Commission states that Annex I has been completely reformulated and supplemented by Directive 85/411.
It explains that all aspects of the directive are potentially binding. If a Member State considers it inapplicable because certain factual conditions are not satisfied, for example because certain species of birds are absent from its territory, it is for such Member State to justify not having adopted measures in respect of those species.
The Commission also states that the existence and adequacy of the special conservation measures referred to in Article 4 of the directive can be reviewed only on the basis of the species of birds present in Italian territory. In other words, the directive must be implemented in that respect by identification in respect of each species of special protection areas and the adoption of special measures.
2.
The Italian Government states that in the application in Case 262/85 (Commission v Italy), which led to the judgment of the Court of 8 July 1987 ([1987] ECR 3073), the Commission did not allege any failure to implement Article 4 of the directive in respect of the version of Annex I which was then in force. In the Italian Government's view that indicates that the Commission considered that the situation in Italy complied with that provision of the directive in respect of the original Annex I.
The Italian Government alleges that the new Annex I introduced by Directive 85/411 (144 species for which special conservation measures must be taken, instead of 74) lists many species of birds which do not occur in Italian territory. In its view it could reasonably be expected that the Commission should state both as regards the original Annex I and the extended Annex I which species needed to be the subject of special conservation measures, having regard to the situation of the protected species occurring in Italian territory. No such particulars have been given, however, either in the pre-litigation procedure or in the application to the Court.
In the Italian Government's view, in those circumstances it was not possible to supply any information to the Commission on that subject. It does not think it possible to bring proceedings for failure to fulfil obligations in order to determine whether and to what extent further special conservation measures are needed in Italy as a result of the replacement of Annex I of the directive. It therefore considers that the action must be declared inadmissible in view of its general nature.
The Italian Government states that the Commission ought to have informed it of the result of its inquiry finding that there was a failure to implement Article 4 and to have made a specific complaint so as to make possible an exchange of views in relation to the actual situation of any particular protected species. No information of that nature has been supplied.
The Italian Government considers that it does not have to notify and explain all the special conservation measures which the Italian regions have adopted in respect of each species of bird referred to in Annex I of the directive occurring in Italy. If the Commission had complained of a specific failure to implement the directive in that respect it would have been possible to review the existence and adequacy of the national special conservation measures. In the absence of a specific complaint such a review is practically impossible.
The Italian Government goes on to observe that the implementing measures referred to in Article 4(1) of the directive have been adopted in Italian law. The regions may establish parks and nature reserves for the conservation of the habitat. Pursuant to Law No 968 of 27 December 1977(Gazetta Ufficiale della Repubblica Italiana No 3, 4.1.1978) they must on a regional basis provide for:
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Protection areas intended as refuge, breeding and rest areas for wildlife (Art. 6(1)(a));
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Areas for repopulation and capture, intended for game breeding, its spread to adjacent areas and its capture with a view to repopulation (Art. 6(1)(b));
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Public wildlife-breeding centres, including natural reserves (Art. 6(1)(c));
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Rules which provide for or regulate incentives for owners and tenants of land, (individuals or groups) to undertake the restoration and protection of the environment and to provide for game production (Art. 6(1)(f)).
According to the Italian Government, it is clear that the existence and adequacy of the national special conservation measures, having regard also to the matters referred to in Article 4(1), can be reviewed only in respect of certain species of birds connected with Italian territory. A general and generic review such as that called for by the Commission is thus impossible.
M. Díez de Velasco
Judge-Rapporteur
(
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)	Language of the case: Italian.