62004CC0507_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I – Introduction
1. In the present infringement proceedings the Commission complains about the transposition of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (2) (‘the Wild Birds Directive’) in various Austrian provinces.
2. The procedure was initiated by a letter of formal notice dated 13 April 2000 and was taken forward by a reasoned opinion dated 17 October 2003. The Commission brought the present action on 8 December 2004.
3. Following various amendments to Austrian law in the course of the proceedings, the Commission now claims that the Court should:
(1) declare that, by failing to transpose Articles 1(1) and (2), 5, 6(1), 7(1) and (4), 8, 9(1) and (2) and 11 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds correctly and completely into Austrian law, the Republic of Austria has failed to fulfil its obligation to transpose that directive completely and correctly;
(2) order the Republic of Austria to bear the costs of the proceedings.
4. The Republic of Austria contends that the Court should:
(1) dismiss the action as unfounded, at any rate to the extent that Austrian law has been amended in the interim, and
(2) order the Commission to bear the costs of the proceedings.
II – Analysis
5. The action is to be considered by reference to the legal position at the end of the period fixed by the Commission in its reasoned opinion. The reasoned opinion having been lodged with the Austrian Permanent Representation on 17 October 2003, the relevant point in time is 17 December 2003.
A – Partial admission of the complaints
6. Austria does not dispute the allegation that Article 1(1) and (2) have not been adequately transposed in Carinthia, Lower Austria and Styria, nor Article 5 in Lower Austria and Styria, Article 7(1) in Lower Austria and Article 7(4) and Article 9 in Styria, but indicates that Austrian law is to be brought into line with those provisions. Given that these amendments were not made by the expiry of the period specified in the reasoned opinion, the failure to fulfil obligations is to be regarded as admitted to that extent.
B – Article 1 of the Wild Birds Directive
7. Article 1 of the Wild Birds Directive defines the directive’s field of application, that is to say its intended protective scope. The Court has already made it clear that this provision must be transposed into national law. (3) Article 1(1) and (2) provide as follows:
‘1. This Directive relates to the conservation of all species of naturally occurring birds in the wild state in the European territory of the Member States to which the Treaty applies. It covers the protection, management and control of these species and lays down rules for their exploitation.
2. It shall apply to birds, their eggs, nests and habitats.’
1. Burgenland
8. In relation to Burgenland, the Commission complains that Paragraph 16(1)(b) of the Burgenländisches Naturschutz- und Landschaftspflegegesetz (Law of Burgenland on Nature Protection and Maintenance of the Countryside) provides that ‘protection is conferred upon … all other species of wild birds, with the exception of the European starling ( Sturnus vulgaris ) in accordance with Paragraph 88a of the Burgenländisches Jagdgesetz (Law of Burgenland on Hunting)’. No other provision conferring general protection on starlings is referred to.
9. Austria relies for the purposes of transposition solely on provisions of hunting law which state that the shooting of starlings may be permitted only in the period from 15 July to 30 November, for the purpose of protecting vines. This requires a regulation under Paragraph 88a(1) of the Law of Burgenland on Hunting, which may be enacted if it is to be anticipated that starlings will appear in very large numbers in the area of vineyards.
10. Regardless of whether, as Austria submits, these provisions are permissible under the third indent of Article 9(1)(a) of the Wild Birds Directive, (4) they cannot in any event justify the total exclusion of starlings from bird conservation. The protection of all birds required by Article 1 relates not only to hunting, which is governed by Article 7, but also to other forms of interference under Article 5.
11. Accordingly, Article 1 of the Wild Birds Directive has not been transposed correctly in Burgenland.
2. Upper Austria
12. In Upper Austria the category of protected bird species is defined by a species protection regulation which must be enacted under Paragraph 27(1) and (2) of the Oberösterreichisches Natur- und Landschaftsschutzgesetz (Law of Upper Austria on Nature and Countryside Protection). Protection may be conferred on animals living in the wild that cannot be hunted ‘in so far as the relevant species is rare in the countryside of the area, the existence of its population is threatened, or its conservation is in the public interest on grounds of protection of the ecosystem …’.
13. The Commission complains that this legal basis does not allow protection to be conferred on all of the bird species covered by Article 1 of the Wild Birds Directive. Specifically, black-billed magpies ( Pica pica ), jays ( Garrulus glandarius ), carrion crows ( Corvus corone corone ) and hooded crows ( Corvus corone cornix ) are expressly excluded from the scope of bird conservation.
14. As regards the objections to the legal basis, Austria replies that Paragraph 27(1) and (2) of the Law of Upper Austria on Nature and Countryside Protection must be interpreted and applied in conformity with the Wild Birds Directive; in particular it is expressly provided that Articles 5 to 7 and 9 must be taken into account.
15. However, the transposition of a directive must meet higher standards than that. The transposition must be carried out in such a way that every person applying the law applies the provisions implementing the directive as the latter requires, even if he does not know of the directive. As the Court has made clear, the fact that national authorities apply the law in conformity with a directive therefore cannot itself achieve the clarity and precision needed to meet the requirement of legal certainty. (5) Nor can mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, be regarded as constituting the proper fulfilment of obligations under Community law. (6) Moreover, faithful transposition is particularly important in the case of the Wild Birds Directive where management of the common heritage is entrusted to the Member States in their respective territories. (7)
16. In the present case, the wording of Paragraph 27(1) and (2) of the Law of Upper Austria on Nature and Countryside Protection calls into question whether Article 1 of the Wild Birds Directive has been comprehensively transposed, because birds which may be hunted cannot be included in a species protection regulation notwithstanding that they are covered by the Wild Birds Directive. In addition, a species can receive protection only if it is rare. This too is not a restriction which has any basis in Article 1. The reference to Articles 5 to 7 and 9 cannot cure these faults, because Article 1 is not mentioned.
17. Also problematic is the fact that it may be that Austria would wish to protect only native species, although this does not necessarily follow from Paragraph 27. The Court has already held that in each Member State the Wild Birds Directive protects all species of birds naturally occurring in the wild state in the European territory of the Member States to which the Treaty applies – both species which are native in the Member State and species found only in other Member States. (8) Differences exist only in relation to the applicable protective provisions.
18. Furthermore, the Commission correctly complains that certain species, namely the black-billed magpie, jay, carrion crow and hooded crow are excluded from the scope of protection. Article 1 of the Wild Birds Directive covers these species too.
19. It follows that in Upper Austria also Article 1 of the Wild Birds Directive has not been properly transposed.
C – Article 5 of the Wild Birds Directive
20. Article 5 provides:
‘Without prejudice to Articles 7 and 9, Member States shall take the requisite measures to establish a general system of protection for all species of birds referred to in Article 1, prohibiting in particular:
(a) deliberate killing or capture by any method;
(b) deliberate destruction of, or damage to, their nests and eggs or removal of their nests;
(c) taking their eggs in the wild and keeping these eggs even if empty;
(d) deliberate disturbance of these birds particularly during the period of breeding and rearing, in so far as disturbance would be significant having regard to the objectives of this Directive;
(e) keeping birds of species the hunting and capture of which is prohibited.’
1. Burgenland
a) Protection of starlings
21. In relation to Burgenland the Commission complains that the inadequate protection, as described above, given to starlings by Paragraph 16(1)(b) of the Law of Burgenland on Nature Protection and Maintenance of the Countryside in conjunction with Paragraph 88a(1) and (2) of the Law of Burgenland on Hunting, (9) constitutes an infringement of Article 5 of the Wild Birds Directive too. Since, as I have shown above, starlings are excluded from the bird protection provisions in breach of Article 1 of the Wild Birds Directive, Article 5 is infringed at the same time. The protection conferred by Article 5 extends to all bird species falling within Article 1.
22. In principle, a derogation from Article 5 of the Wild Birds Directive may, however, be justified under Article 9(1) if one of the conditions identified in that provision obtains and there is no other satisfactory solution. In relation to starlings, prevention of serious damage to vines is relied upon. In certain circumstances this reason may justify derogations from Article 5. (10) However, such justification cannot suffice to exclude starlings from the scope of protection altogether, as happens in the present case. It is not possible that this species causes serious damage at all times and regardless of population size. It follows that the allegation of an infringement of Article 5 in relation to starlings is well founded.
b) Protection of nests
23. The Commission further alleges that, in breach of Articles 5 and 9 of the Wild Birds Directive, the Burgenländische Artenschutzverordnung (Regulation of Burgenland on the Protection of Species) also provides for a general exception for deliberate harm to nesting, reproduction, resting and wintering areas of protected species routes. It submits that this follows from Paragraph 6 of the Regulation of Burgenland on the Protection of Species, which provides that ‘the lawful pursuit of hunting and fishing is not affected by this regulation’.
24. In response to this allegation by the Commission, Austria submits that Paragraphs 16 to 16b of the Law of Burgenland on Nature Protection and Maintenance of the Countryside ensures the protection of the species at all stages of their development, despite the provision in Paragraph 6 of the Regulation of Burgenland on the Protection of Species.
25. In fact, Paragraph 16(1) and the first sentence of Paragraph 16(4) of the Law of Burgenland on Nature Protection and Mai ntenance of the Countryside provide that it is unlawful to pursue, disturb, capture, transport, hold, injure, kill, keep, take away or harm birds – with the exception of starlings – at all stages of their development. Although nests and eggs are not expressly mentioned, it therefore appears that in principle the prohibitions in Article 5 of the Wild Birds Directive have been transposed. In some respects the Burgenland prohibitions are even stricter, not being limited to deliberate acts.
26. However, the Burgenland legislature assumed that further regulation is required, in particular in relation to nests, which Article 5(b) of the Wild Birds Directive requires to be protected. Paragraph 16(2)(d) of the Law of Burgenland on Nature Protection and Maintenance of the Countryside provides that the Provincial Government must list in a regulation those animal species for the protection of which it is prohibited to remove, damage or destroy nests and their locations, mating grounds and reproduction, resting and wintering areas (trees having nests or hollows, cliffs and rockfaces used for hatching, reed colonies, burrows and so forth). It is therefore possible to conclude, a contrario, that the general prohibitions in Paragraph 16(4) of the Law of Burgenland on Nature Protection and Maintenance of the Countryside do not cover these forms of harm, although the vast majority of them are incompatible with Article 5 of the Wild Birds Directive. It follows that Burgenland law is open to misunderstanding in that regard.
27. The provisions of the Regulation of Burgenland on the Protection of Species do not cure this error in transposition. The required provisions are laid down in Paragraph 2 not for all bird species which should be protected but only for a few particularly endangered species. It is therefore to be feared that the nests of other species are not protected. In addition, as the Commission rightly objects, by virtue of Paragraph 6, the regulation does not apply to hunting and fishing. Hunters and anglers could regard this as giving them carte blanche
to interfere with nests.
28. Austria has not sought to provide a justification for these provisions, and so the Commission’s submission of incompatibility with Article 9 of the Wild Birds Directive is immaterial.
29. Accordingly, the action is well founded in this regard too.
2. Carinthia
30. In relation to Carinthia, the Commission complains that Annex 1 to the Tierartenschutzverordnung (Regulation on the Protection of Animal Species) in force there excludes certain bird species (the carrion crow, hooded crow, jay, Eurasian jackdaw ( Corvus monedula ), black-billed magpie and house sparrow ( Passer domesticus )) from the category of ‘fully protected animal species’ contrary to the Wild Birds Directive.
31. The Commission relies on this circumstance, which Austria does not dispute, as a basis for the proposition that Article 1 of the Wild Birds Directive has not been correctly transposed. (11) As stated above, if protection is not given to particular bird species which are covered by Article 1, this leads at the same time to an infringement of Article 5, because Article 5 expressly relates to all bird species referred to in Article 1. (12)
32. Although the Commission refers to the feral domestic pigeon ( Columba livia ?), it made it clear at the beginning of the application that its view is that (in Austria?) this species does not fall within the Wild Birds Directive. Since the application is inconsistent, it does not satisfy the requirements of Article 38(1)(c) of the Rules of Procedure in this regard and is accordingly inadmissible in relation to the feral domestic pigeon. (13)
33. In addition, the Commission complains that Paragraph 68(1)(19) of the Kärntner Jagdgesetz (Law of Carinthia on Hunting) does not transpose, for game birds subject to hunting law, the prohibitions in Article 5(a) and (e) of the Wild Birds Directive on the deliberate killing, capture or keeping of birds within Article 1. It must be found that this provision prohibits only harming nests. Nor do the provisions referred to by Austria, namely Paragraphs 68(1)(19) and 51(4a) of the Law of Carinthia on Hunting contain appropriate transposing rules.
34. Accordingly, the Commission’s action is well founded in this regard too, except so far as concerns the inadmissible complaint in relation to the feral domestic pigeon.
3. Upper Austria
35. First, the Commission complains that the enabling power in Paragraph 27(1) of the Law of Upper Austria on Nature and Countryside Protection is limited to native species. The provision cited states that ‘… animals living in the wild that cannot be hunted may be specially protected by regulation of the Provincial Government, in so far as the relevant species is rare in the countryside of the area, the existence of its population is threatened, or its conservation is in the public interest …’. In addition it complains that Paragraph 5(1) of the Oberösterreichische Artenschutzverordnung (Regulation of Upper Austria on the Protection of Species) excludes black-billed magpies, jays, carrion crows and hooded crows from the categories of protected bird species.
36. Thus, the Commission’s complaint in relation to Upper Austria is limited to the failure to protect all species which should be protected. In that regard it has already been found that neither Paragraph 27 of the Law of Upper Austria on Nature and Countryside Protection nor Paragraph 5(1) of the Regulation of Upper Austria on the Protection of Species ensure sufficient protection of the species within Article 1 of the Wild Birds Directive. It follows that there is a concomitant infringement of Article 5 of the Wild Birds Directive, whose scope, as regards the species protected, is identical to that of Article 1. (14)
D – Article 6(1) of the Wild Birds Directive
37. Article 6(1) of the Wild Birds Directive prohibits trading in bird species falling within Article 1:
‘Without prejudice to the provisions of paragraphs 2 and 3, Member States shall prohibit, for all the bird species referred to in Article 1, the sale, transport for sale, keeping for sale and the offering for sale of live or dead birds and of any readily recognisable parts or derivatives of such birds.’
38. Annex III/1 and Annex III/2 list certain species for which the prohibition on sale does not apply in certain conditions.
39. The Commission complains that in Upper Austria this prohibition has not been transposed in relation to black-billed magpies, jays, carrion crows and hooded crows. In reply Austria submits that it was only by mistake that these birds were not included in the list of birds that may be hunted in Austria which appears in Annex II to the Wild Birds Directive. However, this objection is irrelevant to the present complaint, because the possibility of hunting would not necessarily also lead to an exclusion from the prohibition on trade.
40. Accordingly, the action should be upheld in this regard too.
E – Article 7(1) of the Wild Birds Directive
41. The first sentence of Article 7(1) of the Wild Birds Directive governs which bird species may be hunted. The provision states:
‘Owing to their population level, geographical distribution and reproductive rate throughout the Community, the species listed in Annex II may be hunted under national legislation.’
1. Carinthia
42. The Commission complains that Paragraph 9(2) of the Durchführungsverordnung zum Kärntner Jagdgesetz (Regulation implementing the Law of Carinthia on Hunting) still provides for a hunting season for the ‘Aaskrähe’ ( Corvus corone ) (this comprises carrion crows and hooded crows), the jay and the magpie, notwithstanding that these are not bird species which may be hunted according to Annex II to the Wild Birds Directive.
43. In this regard too, Austria relies on the argument that Annex II to the Wild Birds Directive is incomplete in relation to Austria, stating that it is to be included in the list of States in which corvids may be hunted and at the moment is seeking to persuade the Commission to make the necessary correction to Annex II.
44. However, the decision in the present proceedings depends solely on the content of Annex II at the relevant time, that is to say up to the expiry of the time-limit specified in the reasoned opinion. Given that in that period the bird species identified were not included in the list in Annex II to the Wild Birds Directive of birds which can be hunted in Austria, Austria was not entitled to provide for a hunting season for them. Thus, Article 7(1) of the Wild Birds Directive has not been transposed correctly in Carinthia.
2. Upper Austria
45. As regards Upper Austria, the same applies as in relation to Carinthia. Thus, the Commission’s action is well founded in this regard too.
F – Article 7(4) of the Wild Birds Directive
46. The second and third sentences of Article 7(4) of the Wild Birds Directive govern the duration of close seasons as follows:
‘They [the Member States] shall see in particular that the species to which hunting laws apply are not hunted during the rearing season nor during the various stages of reproduction. In the case of migratory species, they shall see in particular that the species to which hunting regulations apply are not hunted during their period of reproduction or during their return to their rearing grounds.’
47. The Commission claims that in all of the following provinces the close seasons for certain species deviate from the periods required by the second and third sentences of Article 7(4) of the Wild Birds Directive, in that the hunting seasons extend into the rearing season and stages of reproduction without there being any justification for this pursuant to Article 9.
1. General questions
48. Before considering in detail the issues in relation to individual provinces, it is necessary to discuss a number of general questions which arise regardless of the specific provisions. These questions concern, first, proof of the close seasons which the Commission puts forward and, second, the hunting of capercaillie ( Tetrao urogallus ), black grouse ( Tetrao tetrix ), Rackelhahn ( Tetrao tetrix x Tetrao urogallus ) and woodcock ( Scolopax rusticola ). In relation to these species Austria submits that the mating season is not to be regarded as part of the close season, and that in any event the hunting is justified under Article 9 of the Wild Birds Directive during the mating season. (15)
a) Scientific evidence of the requisite close seasons
49. In all the cases the Commission gives specific dates for the close season for the species concerned, but does not identify the source of those dates. (16) One might regard this as meaning that its submission lacks a sufficient factual basis. However, the correct approach is to regard the indication of the dates as sufficient to satisfy the applicant’s burden of proof where they are not disputed.
50. By contrast, where they are disputed it is essential that the dates be supported by the results of scientific research which the Member State must have an opportunity to refute, if need be. (17)
b) Hunting during the mating season
51. The parties are in disagreement as to whether the mating season is part of the close season under the second sentence of Article 7(4) of the Wild Birds Directive. This disagreement is due at least in part to differences between the various language versions.
52. In the German version of the second sentence of Article 7(4) of the Wild Birds Directive, the close season encompasses the nesting season (‘Nistzeit’) and the various stages of breeding and rearing (‘Brut- und Aufzuchtzeit’). Similarly to the German version, the Dutch and Danish versions appear to refer expressly to breeding. Mating is not part of breeding, but precedes it, at any rate if one applies the latter term exclusively to the incubation of eggs. Austria infers from this that the mating season of black grouse, capercaillie and woodcock is not part of the close season.
53. The Commission, on the other hand, takes the view that the mating season is generally recognised as forming part of the period of reproduction, and therefore of the nesting season. It can invoke the other three original language versions of the Wild Birds Directive. The English, French and Italian versions do not use the term ‘breeding’ but the broader term ‘reproduction’. Mating too is a necessary part of reproduction.
54. Against this background it is not impossible to understand the term ‘breeding’ in the German, Dutch and Danish language versions as likewise including reproduction, and thus as including mating.
55. Such a broad interpretation of the close season also corresponds to the objective, recognised by the Court, of securing a complete system of protection in the periods during which the survival of wild birds is particularly under threat. (18) It is to be assumed that any interference during the periods relevant to reproduction can affect reproduction. It follows that the mating season forms part of the period in which, in principle, the second sentence of Article 7(4) of the Wild Birds Directive prohibits hunting.
56. The opinion produced by Austria also implies though that the Commission identifies too long a period for the part of mating relevant to reproduction. In relation to black grouse, capercaillie and woodcock, it is apparent that the Commission’s figures depend on the arrival of hens in the mating area. (19) At this time, however, ‘most females are still far from being able to produce eggs’. (20)
57. However, it follows from the principle of a complete system of protection that it does not matter whether most
females are ready to reproduce, and that it is enough if mating is part of the reproduction phase in relation to only part of the population of a bird species. (21)
58. Accordingly, the submissions as regards the mating season cannot defeat the information which the Commission provided on the close season for capercaillie, black grouse and woodcock.
c) Justification of hunting during the mating season
59. However, subject to conditions which it specifies, Article 9 of the Wild Birds Directive allows hunting of the species identified in Annex II to be permitted during the periods specified in Article 7(4) of the directive. (22) The key provisions are Article 9(1) and (2):
‘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 repopulation, of reintroduction 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.
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.’
60. Article 9 of the Wild Birds Directive is an exception which is to be interpreted strictly and which imposes on the authority taking the decision the burden of proving that the necessary conditions are present for each derogation. (23) It follows that in the present proceedings Austria must prove the justification it relies on under Article 9 of the Wild Birds Directive. (24)
61. Austria submits in particular that permitting such hunting would foster the hunters’ interest in preserving these species and that this is necessary, because without intensive care of their habitats the population of these species would decline. This appears to be a reference to the fourth indent of Article 9(1)(a) of the Wild Birds Directive, which allows a derogation for the protection of flora and fauna. In order to rely on Article 9 it is necessary, however, that there be no other satisfactory solution available. (25) Yet it is clear that protection of these species’ habitats may also be guaranteed independently of hunting. (26) Moreover, in accordance with Article 4 the Member States are under an obligation to do this, (27) both within and outside special protection areas. (28)
62. The question also arises as to whether hunting seasons may be justified by way of derogation under Article 9(1)(c) of the Wild Birds Directive, so as to permit, under strictly supervised conditions and on a selective basis, the judicious use of certain birds in small numbers. This possibility of derogation is also subject to the requirement that there be no other satisfactory solution.
63. The Court has held that there is a satisfactory alternative to hunting during the periods for which the directive seeks to confer particular protection if it is possible for the bird species in question to be hunted in the relevant area outside the close season. In that case the only purpose of the exception would be to extend the hunting period. (29)
64. To date, the Court has regarded the presence of a ‘not inconsiderable’ or ‘certain’ number of animals of the relevant species in the spring hunting territories from early autumn onwards as sufficient to establish the existence of another satisfactory solution. (30) In so deciding, the Court took into account the fact that in autumn a considerably lower number of members of the species were present in the hunting territory. (31) It is only where the species is entirely absent outside the close season that the Court has regarded a derogation from Article 7(4) of the Wild Birds Directive as justified. (32)
65. Austria accepts that the species in question are present within the territory also during the hunting seasons. It submits, however, that at that time hunting is not possible, or is possible only in a few exceptional cases. When there is a lot of snow in the mountains hunting with dogs is impossible. It is hardly possible, or impossible, to find shot or wounded game.
66. However, these submissions by Austria contradict the opinion which it submitted. According to the opinion, it is at least possible to hunt capercaillie and black grouse in the autumn – albeit in less favourable conditions, in particular as regards measures to protect numbers. (33) Indeed, as regards woodcock it appears to be undisputed that autumn hunting is possible. (34) It is therefore to be assumed that it is possible to hunt these species in autumn.
67. However, Austria’s submissions may be distinguished from previous cases in that it seeks to establish that there is no other satisfactory solution also on the basis that spring hunting is more selective than autumn hunting. It explains that one can limit oneself to shooting individual – non-dominant – males which, so far as capercaillie and black grouse are concerned, would not contribute to reproduction of the species. As regards woodcock, they are polygamous, and in terms of reproduction any shot males are substituted by other males. In autumn and winter one cannot ensure this. It follows that what is involved is not only extending the hunting period but, at any rate, also hunting being practised in a manner that affords the population greater protection.
68. The Commission is of the view that this point is irrelevant in relation to the application of Article 9 of the Wild Birds Directive. However, I am not convinced of that. If spring hunting of males is in fact better for the populations of the affected species than autumn hunting, a fact which is not disputed by the Commission, it accords with the objectives of the Wild Birds Directive to prefer this form of hunting. Thus, there may not be a satisfactory solution other than hunting during the mating season if other forms provide less protection.
69. However, in order for there to be no satisfactory alternative to the more protective hunting during the mating season, the less protective hunting during periods in which the Wild Birds Directive permits hunting must not also take place. Otherwise the more protective hunting would merely constitute an additional burden on the populations, which could be hunted for longer.
70. The extent to which this is ensured in the individual Austrian provinces and whether the other requirements for a derogation under Article 9 of the Wild Birds Directive are satisfied can be judged only by reference to the actual provisions in force in the various Austrian provinces.
2. The individual provinces
a) Burgenland
71. In relation to Burgenland, the Commission complains that Paragraph 88b(2) of the Law of Burgenland on Hunting allows woodcock to be hunted under the form of hunting called ‘Schnepfenstrich’ (mating flight of the snipe) between 1 March and 15 April, although this species is to be hunted only from 11 September to 19 February. Burgenland also provides for autumn hunting of this species. In addition, the close seasons laid down in Paragraph 76(1)(13) and Paragraph 76(1)(16) of the Burgenländische Jagdverordnung (Regulation of Burgenland on Hunting) are too short in respect of the wood pigeon ( Columba palumbus ) (16 April to 31 July, instead of 1 February to 31 August), the collared dove ( Streptopelia decaocto ) (16 April to 31 July, instead of 1 March to 20 October), the turtle dove ( Streptopelia turtur ) (1 November to 31 July, instead of 11 April to 31 August) and the woodcock (1 January to 28 February and 16 April to 30 September, instead of 20 February to 10 September).
72. Austria’s response is inter alia that the close seasons provided for by Paragraph 76 of the Regulation of Burgenland on Hunting were laid down taking into account climatic conditions in Austria. This is the only instance which Austria disputes the correctness of the Commission’s suggested close seasons, apart from the question discussed above as to whether mating falls within the close season under the second sentence of Article 7(4) of the Wild Birds Directive.
73. It follows that, in order for the action to succeed in this regard, it would be necessary for the Commission at least to state the grounds on which it is of the view that the close seasons in accordance with Article 7(4) of the Wild Birds Directive include the periods it has identified. However, the Commission has not answered Austria’s specific submission.
74. It follows that the Commission has not provided sufficient evidence as to the duration of the close seasons and its action is to be dismissed on this point.
b) Carinthia
75. The Commission complains that Paragraph 9(2) of the Regulation implementing the Law of Carinthia on Hunting lays down hunting seasons for the following bird species which fall within the reproduction and rearing seasons: capercaillie (10 May to 31 May, instead of 1 October to 28 February), black grouse (10 May to 31 May, instead of 21 September to 31 March), common coot ( Fulica atra ) (16 August to 31 January, instead of 21 September to 10 March), woodcock (1 September to 31 December and 16 March to 10 April, instead of 11 September to 19 February), wood pigeon (1 August to 31 December and 16 March to 10 April, instead of 1 September to 31 January) and collared dove (1 August to 31 December and 16 March to 10 April, instead of 21 October to 20 February).
76. Austria does not dispute this allegation in so far as it relates to the common coot, the wood pigeon and the collared dove.
77. As regards capercaillie, black grouse and woodcock, Austria relies on the reasons already described. In that regard it is to be stated that spring hunting of woodcock is supplemented by autumn hunting. It follows that as regards this species Austria cannot invoke the absence of another satisfactory solution within the meaning of Article 9(1)(c) of the Wild Birds Directive.
78. By contrast, capercaillie and black grouse are subject only to a spring hunting season. Accordingly, in principle it is possible to apply Article 9(1)(c) of the Wild Birds Directive in relation to both of these species.
79. However, the Court has recently emphasised that Article 9(1)(c) of the directive requires the Member States when adopting measures implementing that provision to 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 imposed by that provision, and the ceiling must be determined on the basis of strict scientific data. (35) In particular, national implementing provisions concerning the ‘small numbers’ referred to in Article 9(1)(c) of the directive must enable the authorities responsible for authorising hunting derogations in respect of birds of a given species to rely on criteria which are sufficiently precise as to the quantitative ceilings to be complied with. (36)
80. In that regard Austria relies on an amendment in 2004 to the Law of Carinthia on Hunting, but this is irrelevant to the present proceedings because the question whether there has been an infringement of Community law is determined by reference to the legal position as at 17 December 2003. In any event, although this amendment expressly limits the grant of authorisation for the hunting of black grouse, capercaillie and woodcock during the close season laid down by the directive to small numbers, there is no more specific definition of the concept of ‘small numbers’. In particular, there appear to be no criteria.
81. The same applies in relation to Austria’s submission that the hunting of black grouse and capercaillie is subject to planning of the animals to be shot and that Articl e 9 of the Wild Birds Directive is thereby complied with. The planning may be apt to ensure that the controls required by the fifth indent of Article 9(2) are carried out, but this is no substitute for a statutory definition of the term ‘small numbers’.
82. Accordingly, the Commission’s action succeeds in this regard too.
c) Lower Austria
83. In relation to Lower Austria, the Commission complains that for the following bird species Paragraph 22 of the Niederösterreichische Jagdverordnung (Regulation of Lower Austria on Hunting) provides for hunting seasons which fall within the period of reproduction or rearing: capercaillie (1 May to 31 May in even-numbered years, instead of 1 October to 28 February), black grouse (1 May to 31 May in odd-numbered years, instead of 21 September to 31 March), Rackelhahn (all year round, instead of 1 October to 28 March) and woodcock (1 September to 31 December and 1 March to 15 April, instead of 11 September to 19 February).
84. Austria submits first of all that the complaint relating to the Rackelhahn was not covered by the Commission’s letter of formal notice, and that the action is therefore inadmissible in this regard. The Commission’s response is that the Rackelhahn is merely a hybrid of capercaillie and black grouse, and that it was therefore unnecessary to refer to it in the letter of formal notice.
85. The Commission’s view cannot be accepted. The Rackelhahn comes from crossing two species. Regardless of whether, in biological terms, it is possible to regard these birds as a separate species, they are in any event neither capercaillie nor black grouse. Accordingly, they should have been referred to in the letter of formal notice and in the reasoned opinion, because the Court has consistently held that these delimit the subject-matter of the dispute. (37) Having regard to the Member State’s ability to submit observations, the subject-matter of the dispute cannot subsequently be broadened. It follows that the complaint is inadmissible in so far as the Commission objects to the hunting season for the Rackelhahn.
86. With regard to the complaint that the other bird species identified receive insufficient protection, as already explained (38) spring hunting may be justified only by reference to Article 9 of the Wild Birds Directive. However, justification is not possible in relation to woodcock because for them there is also a hunting season in autumn and winter, and spring hunting is accordingly not an alternative, providing more protection, to autumn hunting, but an additional burden.
87. On the other hand, justification is possible in relation to capercaillie and black grouse, because there is no autumn hunting and every second year there is no spring hunting. However, Austria does not provide any information as to how the other requirements of Article 9(1)(c) of the Wild Birds Directive are satisfied, in particular as regards the restriction to small numbers. (39)
88. Accordingly, the Commission’s action is to be allowed in this regard too.
d) Upper Austria
89. The Commission’s allegation against Austria is that Paragraph 1 of the Oberösterreichische Schonzeitenverordnung (Regulation of Upper Austria on Close Seasons) lays down hunting seasons for the following species which fall within the period of reproduction or rearing: capercaillie (1 May to 31 May, instead of 1 October to 28 February), black grouse (1 May to 31 May, instead of 21 September to 31 March), Rackelhahn (1 May to 31 May, instead of 1 October to 28 March) and woodcock (1 October to 30 April, instead of 11 September to 19 February).
90. As regards woodcock this allegation is well founded, because it may be hunted not only (protectively) in spring, but also in autumn and winter. (40) While capercaillie and black grouse may be hunted only in spring, there is, however, no evidence that the other requirements of Article 9(1)(c) of the Wild Birds Directive are satisfied, in particular in relation to criteria for determining what ‘small numbers’ are. In this respect too the action is well founded.
91. As regards the provisions on the Rackelhahn, it must first be considered whether these birds, being a cross of capercaillie and black grouse, fall within the protection conferred by the Wild Birds Directive.
92. In accordance with Article 1(1), the Wild Birds Directive seeks to conserve species of naturally occurring birds in the wild state in the European territory of the Member States to which the Treaty applies. The prohibitions in Article 5 on killing and capture relate to specimens of these species. The provisions in Article 7 on hunting relate likewise to certain species the hunting of which is permitted by the directive. (41)
93. A biological species is the totality of all individual beings which form a reproducing community. Whether one Rackelhahn can successfully mate at all with another is disputed at least by Austria – in its submissions relating to Lower Austria – but the Commission does not discuss this. Accordingly one cannot assume that the Rackelhahn forms a reproducing community which would permit it to be regarded as a separate species.
94. The Rackelhahn indeed does not belong to the species capercaillie or black grouse. In this regard too, Austria disputes the possibility that they might reproduce, and the Commission does not challenge this.
95. It follows that hunting of the Rackelhahn is subject to neither the prohibition on killing and capture of specimens of bird species nor the provisions on hunting.
96. This result also reflects the protective purpose of the Wild Birds Directive. The latter does not seek to protect individual birds as such but expressly to conserve bird species occurring in the wild state. (42) Hybrids which are not capable of reproduction cannot make any contribution to this.
97. Accordingly, the Commission’s action is to be dismissed in relation to the Rackelhahn.
98. For the sake of completeness it is to be observed that hunting of the Rackelhahn is compatible with Article 5(d) of the Wild Birds Directive only to the extent that it does not lead to significant disturbance to the reproduction of protected species. This concerns in particular black grouse, in whose mating grounds, according to information supplied by Austria, the Rackelhahn may be found.
99. However, if the Court were to hold that hunting Rackelhahn can be permitted only in accordance with Articles 7 and 9 of the Wild Birds Directive, the Commission’s action would be well founded also in relation to the Rackelhahn. Since the Rackelhahn cannot be classified within any of the species listed in Annex II, hunting could not be permitted by reference to Article 7. Equally, the conditions for exemption under Article 9 have not been proven. It may be that the Rackelhahn impedes the successful reproduction of black grouse, but Austria’s submission does not permit the conclusion that this constitutes serious damage to crops, livestock, forests, fisheries and water within the meaning of the third indent of Article 9(1)(a). As regards judicious use in small numbers, as with capercaillie and black grouse there is in any event no criterion for determining what is a small number. (43)
e) Salzburg
100. The Commission complains that Paragraph 54(1) of the Salzburger Jagdgesetz (Law of Salzburg on Hunting) in conjunction with Paragraph 1 of the Schonzeitenverordnung (Regulation on Close Seasons) lays down hunting seasons which fall within the breeding season for capercaillie (1 to 31 May, instead of 1 October to 28 February), Rackelhahn (1 May to 15 June, instead of 1 October to 28 March), black grouse (1 May to 15 June, instead of 21 September to 31 March) and woodcock (1 March to 15 April and 1 October to 31 December, instead of 11 September to 19 February), without referring sufficiently to the criteria in Article 9 of the Wild Birds Directive. The Commission has withdrawn its application so far as concerns further species.
101. As already explained, the action is to be dismissed in relation to the Rackelhahn, because hunting it is not covered by the Wild Birds Directive. (44)
102. Spring hunting of woodcock in combination with autumn hunting, on the other hand, cannot be justified by reference to Article 9(1)(c). (45)
103. Capercaillie and black grouse may be hunted only in spring. To prove compliance with the other requirements of Article 9(1)(c) of the Wild Birds Directive (46) Austria relies on the provisions relating to planning of the animals to be shot. However, the second sentence of Paragraph 59(1) of the Law of Salzburg on Hunting states that these provisions apply only to bird species which are not named in Annex II to the Wild Birds Directive as species that may be hunted in Austria. Capercaillie and black grouse are listed in Annex II and are therefore not subject to the planning of animals to be shot. It follows that Austria has not proved that compliance with Article 9(1)(c) is guaranteed by statute.
104. Accordingly, the action is also well founded in this respect, as regards the provisions in Salzburg relating to woodcock, capercaillie and black grouse.
f) Tyrol
105. The Commission complains that Article 1(1) of the Zweite Durchführungsverordnung zum Tiroler Jagdgesetz (Second Regulation implementing the Law of Tyrol on Hunting) sets hunting seasons which overlap with the period of reproduction or rearing for capercaillie (1 to 15 May in odd-numbered years, instead of 1 October to 28 February) and black grouse (10 to 31 May, instead of 21 September to 31 March).
106. As already explained it is possible for this type of hunting to be justified by reference to Article 9(1)(c) of the Wild Birds Directive, but here too there is no evidence that the other requirements of this provision have been adequately transposed, in particular as regards criteria for determining what is a small number. (47)
107. It follows that in this regard too the action succeeds.
g) Vorarlberg
108. The Commission’s complaint that Article 7(4) of the Wild Birds Directive has been incorrectly transposed remains for consideration only in respect of an incorrectly set hunting season for black grouse (11 to 31 May, instead of 21 September to 31 March). It is likewise the case here that Austria has not proved that all the necessary conditions for justification of the provisions are satisfied. (48) It follows that the action succeeds in this regard too.
h) Vienna
109. The Commission states that, contrary to Article 7(4) of the Wild Birds Directive, Paragraph 69 of the Wiener Jagdgesetz (Law of Vienna on Hunting), in conjunction with Paragraph 1(1) of the Wiener Schonzeitenverordnung (Regulation of Vienna on Close Seasons), provides for a hunting season for woodcock that falls within the period of reproduction and rearing, in any event between 1 March and 15 April. I would add that in Vienna an autumn and winter hunting season is set, from 1 September to 31 December.
110. Given that, in Vienna too, spring hunting of woodcock is combined with autumn hunting, the former cannot be justified by reference to Article 9(1)(c). (49)
111. In so far as Austria bases its defence on an amendment of the Regulation on Close Seasons enacted only after the expiry of the period laid down by the reasoned opinion, this submission cannot be considered when assessing the present failure to fulfil obligations. Besides, under this amendment too it would not be established that the requirements of Article 9(1) of the Wild Birds Directive are met. In the explanatory notes for the most recent amendment to the regulation (LGBl.(Wien) 41/2004), which are cited by Austria, the only reason given for allowing a derogation is that spring hunting is a historic form of hunting for which there is no substitute. This is not recognised by Article 9(1) of the Wild Birds Directive as being sufficient justification for a derogation.
112. It follows that the action also succeeds in this regard.
G – Article 8 of the Wild Birds Directive
113. Article 8 of the Wild Birds Directive concerns prohibited means and methods of hunting and capture. It provides:
‘1. In respect of the hunting, capture or killing of birds under this Directive, Member States shall prohibit the use of all means, arrangements or methods used for the large-scale or non-selective capture or killing of birds or capable of causing the local disappearance of a species, in particular the use of those listed in Annex IV (a).
2. Moreover, Member States shall prohibit any hunting from the modes of transport and under the conditions mentioned in Annex IV (b).’
114. The Commission submits that Paragraph 20(4) of the Niederösterreichisches Naturschutzgesetz (Law of Lower Austria on Nature Protection) does not specify sufficiently the means of hunting prohibited under Article IV (a) to the Wild Birds Directive. The provision refers simply in general terms to ‘the means, arrangements or methods authorised for capture or killing’.
115. Austria submits that the abovementioned provision imposes an obligation on the authority to specify the means, arrangements and methods authorised for capture or killing itself when it grants authorisation. The fact that, when so doing, it must act in conformity with the directive and that, in the interests of uniformity in the application of the law, it must take into account the prohibitions laid down in Paragraph 95 of the Niederösterreichisches Jagdgesetz (Law of Lower Austria on Hunting), ensures the protection required by the directive.
116. As already explained, the possibility that practice complies with a directive does not satisfy the requirements for proper transposition. (50) In addition the list of unlawful means and methods of hunting and capture must be transposed. (51) In particular, the prohibitions imposed by the directive on the use of specific means when hunting must result from legislative provisions. In view of the principle of legal certainty the relevant prohibitions must be reproduced in mandatory legal provisions. (52)
117. Nor is the reference to Paragraph 95 of the Law of Lower Austria on Hunting of any consequence, because this Law applies only to wild animal species that may be hunted, and does not cover all bird species which have to be protected.
118. Thus, in Lower Austria Article 8 of the Wild Birds Directive has not been properly transposed and the Commission’s action should be upheld in this regard.
H – Article 9 of the Wild Birds Directive
119. The Commission objects to the transposition of Article 9 of the Wild Birds Directive in various provinces. In so far as material, the text of Article 9 has already been quoted. (53)
120. This provision contains the criteria for derogations from the provisions in Articles 5 to 8 of the Wild Birds Directive for the protection of the various bird species. Derogation 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 one of the reasons listed in Article 9(1)(a) to (c) of the Wild Birds Directive. 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. (54)
1. Burgenland
121. The Commission complains that Paragraph 88a(1) of the Law of Burgenland on Hunting allows starlings to be combated from 15 July to 30 November. Paragraph 88a(2) provides that the need for such a measure is to be established by regulation of the Provincial Government when it is to be anticipated that starlings will appear in very large numbers in the area of vineyards. (55) The Commission is of the view that this enabling provision does not contain sufficient reference to the requirements laid down in Article 9 of the Wild Birds Directive.
122. The Commission has objected to the same provision already on the basis that it infringes Articles 1 and 5 of the Wild Birds Directive. Every restriction of a protective provision, such as for example of Article 5, by a national implementing provision may be understood not only as limiting the protective provision’s field of application, in which context it is to be assessed by reference to the protective provision in question, but also as an exception to be assessed by reference to Article 9. It follows that Articles 5 et seq. and 9 – as is the case in relation to Articles 12 et seq. and 16 of the Habitats Directive (56) – constitute a self-contained system of protection. (57) Accordingly, a national implementing measure may infringe Article 9 of the Wild Birds Directive in addition to Article 5 et seq. and is therefore to be assessed by reference to it too, so far as the Commission objects to the measure on that basis.
123. Austria is however of the view that, given the significant damage starlings cause to vines, the provision is compatible with the purpose of Article 9(1) of the Wild Birds Directive. It submits that the travaux préparatoires
relating to Paragraph 88a of the Law of Burgenland on Hunting, which explain that conventional means of dispersal are insufficient, show that there is no other satisfactory solution available. Given that Paragraph 88a of the Law of Burgenland on Hunting is itself merely the enabling provision, it does not need to deal with the conditions laid down by Article 9(2) of the Wild Birds Directive.
124. These submissions cannot be accepted. The principle of legal certainty is not complied with by a Law that enables the enactment of a regulation derogating from the protective provisions but does not itself lay down the precise formal criteria to which the derogation is subject. In that regard, it is appropriate to recall the case-law of the Court according to which faithful transposition of a directive is particularly important in a case such as this in which the management of the common heritage is entrusted to the Member States in their respective territories. (58) The Court has recently emphasised this again in relation to the transposition of Article 9. (59)
125. Paragraph 88a of the Law of Burgenland on Hunting itself neither specifies which means, arrangements and methods are authorised for capture or killing nor lays down any mandatory provision requiring this to be governed by the regulation to be enacted under Paragraph 88a(2). The wording of Paragraph 88a(2) requires the regulation to establish only that starlings pose a risk to vine-growing. It is not demanded, however, that it must also contain more precise details as regards the requirements of Article 9(2) of the Wild Birds Directive. Likewise, the requirement that there be no other satisfactory solution is not mentioned. Thus, Paragraph 88a of the Law of Burgenland on Hunting does not satisfy the criteria for an exception under Article 9 of the Wild Birds Directive.
2. Lower Austria
126. As regards Lower Austria, the Commission submits that, in permitting exceptions ‘in particular for scientific or pedagogical purposes’, Paragraph 20(4) of the Law of Lower Austria on Nature Protection does not lay down an exhaustive list of the lawful grounds for derogating from the provisions for the protection of species of wild birds. Austria’s reply is that in applying Paragraph 20(4) of the Law of Lower Austria on Nature Protection the authority must act in conformity with the directive and must also comply with the criteria laid down in hunting law.
127. As explained above, according to the case-law of the Court a mere administrative practice that complies with a directive does not constitute proper transposition of that directive. (60) The national Law itself must itself include an exhaustive list of grounds for any potential derogation from the protective provisions. The fact that the wording of Paragraph 20(4) of the Law of Lower Austria Law on Nature Protection is open-ended as to the grounds precludes it from constituting proper transposition.
128. The Commission also objects that Paragraph 21 of the Law of Lower Austria on Nature Protection permits derogation from the provisions protecting species of wild birds for the purposes of commercial, agricultural or silvicultural use without this being subject to the criteria in Article 9(1) and (2) of the Wild Birds Directive. Austria’s reply is that the respective exemption clauses do not apply inter alia to deliberate harm to protected plants, animals or habitats.
129. Paragraph 21 of the Law of Lower Austria on Nature Protection excludes commercial, agricultural and silvicultural use from the prohibitions in the law on the conservation of birds. However, these exemption clauses expressly do not apply to deliberate harm to protected plants and animals.
130. Contrary to the Commission’s submission, this legislation is not to be assessed by reference to Article 9 of the Wild Birds Directive. Article 9 would be relevant only if Paragraph 21 of the Law of Lower Austria on Nature Protection permitted a derogation from the prohibitions in Articles 5 to 8. However, that is not the case. The prohibitions in Articles 5 and 6 which are relevant to commercial, agricultural and silvicultural uses expressly or impliedly presuppose deliberate (61) harm. However, the exemptions in Paragraph 21 specifically do not apply to such deliberate harm. Therefore they also need not comply with Article 9.
131. It follows that in this respect the Commission’s action succeeds only in part, to the extent that it relates to Paragraph 20(4) of the Law of Lower Austria on Nature Protection.
3. Upper Austria
132. The Commission complains that Paragraph 60(3) of the Oberösterreichisches Jagdgesetz (Law of Upper Austria on Hunting) contains derogations from the protective provisions without making these conditional on there being no other satisfactory solution. It provides that ‘in residential and commercial buildings and enclosed domestic gardens the occupier may capture or kill, and appropriate, … goshawks, buzzards and sparrow hawks’.
133. The substance of Austria’s reply is that, when the legislature added to this provision the condition ‘if that is necessary to prevent serious damage, in particular to crops, in respect of the keeping of animals, and to other forms of property’, the legislature itself examined the question of possible alternative solutions. It concluded that there were generally no other solutions available in the situations specified in the provision.
134. In this regard, it must be stated first of all that the original version alone is at issue in the present proceedings and that it does not seek at all to provide for the consideration of alternatives.
135. So far as concerns the provision in force today, as the Commission correctly points out it is not enough that the legislature has considered this issue. On the contrary, the fourth indent of Article 9(2) of the Wild Birds Directive shows that it is necessary to designate an authority which undertakes a review in the individual case
of whether the conditions for a derogation obtain. Nor have the further requirements laid down by Article 9(2) of the Wild Birds Directive as regards means of capture and killing and as regards controls been transposed.
136. Moreover, the abovementioned national provision permits the capture, killing and appropriation of birds of protected species to prevent damage ‘to other forms of property’ and thus contains a ground of derogation which goes beyond the exhaustive list in Article 9(1) of the Wild Birds Directive. Thus, Paragraph 60(3) of the Law of Upper Austria on Hunting is incompatible with Article 9(1) and (2).
137. Accordingly, the Commission’s action must be upheld on this point too.
4. Salzburg
138. In relation to Salzburg, the Commission complains that Paragraph 34(1) of the Salzburger Naturschutzgesetz (Law of Salzburg on Nature Protection) permits exceptions from the protective provisions in force to be authorised inter alia where this serves the purpose of the production of beverages. Austria submits that the exception relating to the production of beverages is not applicable to birds, being intended to enable the production of alcoholic drinks using particular plant species. However, the wording of the provision does not contain such a restriction. Thus, the provision creates an additional exception which goes beyond the exhaustive list of grounds for exceptions in Article 9 of the Wild Birds Directive.
139. In addition, the Commission complains that Paragraph 72(3) of the Law of Salzburg on Hunting permits exceptions from the prohibition on the use of traps designed to kill game without the criteria in Article 9(1) and (2) of the Wild Birds Directive being taken into account. This complaint is also well founded. The Salzburg provision fails to reflect that the list of permitted grounds of derogation in Article 9(1) of the Wild Birds Directive is exhaustive, in that it permits traps to be set if ‘public interests of comparable importance cannot be protected in another manner’. Nor are the requirements of Article 9(2) of the Wild Birds Directive adequately transposed into national law.
140. It follows that Article 9 has not been properly transposed in Salzburg. Accordingly the Commission’s action should be upheld in this regard.
5. Tyrol
141. The Commission complains that Paragraph 4(3) of the Tyroler Naturschutzverordnung (Regulation of Tyrol on Nature Protection) declares it permissible to drive crows, starlings and blackbirds away from land used for agricultural and silvicultural purposes and domestic gardens, without transposing the criteria in Article 9 of the Wild Birds Directive. Austria has announced new provisions, but also submits that it is not necessary to rely on Article 9 at all because Article 5(d) requires the prohibition only of disturbance of birds which would be significant having regard to the objectives of the directive. The driving away permitted does not have significant effects.
142. However, I am not persuaded by Austria’s submission. If the species specified were in fact driven away from all land used for agricultural and silvicultural purposes and domestic gardens, their habitat would be reduced to almost nothing. Accordingly, the disturbance which is permitted is liable to be significant having regard to the objectives of the Wild Birds Directive. It follows that it could have been permitted only in accordance with Article 9. However, the requirements laid down in that provision are not transposed.
143. It follows that in this regard the action succeeds.
I – Article 11 of the Wild Birds Directive
144. Article 11 concerns the introduction of non-native bird species and provides:
‘Member States shall see that any introduction of species of bird 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. In this connection they shall consult the Commission.’
145. The Commission submits that Lower Austria has not properly transposed this provision of the directive, because Paragraph 17(5) of the Law of Lower Austria on Nature Protection makes the introduction and promotion of non-native bird species subject to the condition that there be no ‘lasting’ harm to native species or landscape areas. Thus, an additional criterion which is not mentioned in the directive has been introduced.
146. Austria’s reply is that the introduction of non-native species of wild birds requires authorisation from the Provincial Government, which interprets the national provision in conformity with the directive so that authorisation would be refused if local flora and fauna were prejudiced.
147. Article 11 of the Wild Birds Directive lays down stricter limits than the national legislation does on the introduction of bird species which do not occur naturally in the wild state in the European territory of the Member States. Thus, Paragraph 17(5) of the Law of Lower Austria on Nature Protection cannot constitute proper transposition. Also, it has already been explained that the fact that the authorities interpret a provision in conformity with a directive is not enough for transposition. (62)
148. It follows that on this last point the action likewise succeeds.
III – Costs
149. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. To the extent that the action remains before the court, the Commission is largely successful, so that Austria is to be ordered to pay the costs. The same applies under Article 69(5) of the Rules of Procedure as regards the complaints that the Commission has withdrawn. In their regard, Austria caused the action to be brought, because national law was amended so as to comply with the requirements of Community law only belatedly. It follows that Austria is to be ordered to pay all of the costs of the proceedings.
IV – Conclusion
150. I therefore suggest that the Court should:
(1) declare that, by failing to transpose correctly:
– Article 1(1) and (2) of Council Directive 79/409/EEC on the conservation of wild birds in relation to Burgenland, Carinthia, Lower Austria, Upper Austria and Styria,
– Article 5 thereof in Burgenland, Carinthia, Lower Austria, Upper Austria and Styria,
– Article 6(1) in Upper Austria,
– Article 7(1) in Carinthia, Lower Austria and Upper Austria,
– Article 7(4) in the following provinces for the following bird species:
– in Carinthia for the capercaillie, black grouse, common coot, woodcock, wood pigeon and collared dove,
– in Lower Austria for the capercaillie, black grouse and woodcock,
– in Upper Austria for the capercaillie, black grouse and woodcock,
– in Salzburg for the capercaillie, black grouse and woodcock,
– in Styria for the capercaillie, black grouse and woodcock,
– in Tyrol for the capercaillie and black grouse,
– in Vorarlberg for the black grouse, and
– in Vienna for the woodcock,
– Article 8 in Lower Austria,
– Article 9 in Burgenland, Lower Austria, Upper Austria, Tyrol and Styria,
– Article 11 in Lower Austria,
the Republic of Austria has failed to fulfil its obligations under Articles 10 and 249 of the Treaty and Article 18 of Directive 79/409;
(2) dismiss the action as to the remainder;
(3) order the Republic of Austria to bear the costs of the proceedings.
(1) .
(2)  –	OJ 1979 L 103, p. 1, as amended by Commission Directive 97/49/EC of 29 July 1997 (OJ 1997 L 223, p. 9).
(3)  –	Case C‑247/85 Commission
v Belgium
[1987] ECR 3029 (conformity), paragraph 18 et seq.
(4)  –	On this issue, see below, point 121 et seq.
(5)  –	Case C-144/99 Commission
v Netherlands
[2001] ECR I-3541, paragraph 21; Case C‑236/95 Commission
v Greece
[1996] ECR I-4459, paragraph 12 et seq.; and, in relation to the environmental field, the Opinion of Advocate General Stix-Hackl in Case C‑233/00 Commission
v France
[2003] ECR I-6625, point 73.
(6)  –	Case C‑197/96 Commission
v France
[1997] ECR I‑1489, paragraph 14; Case C‑358/98 Commission
v Italy
[2000] ECR I‑1255, paragraph 17; Case C‑145/99 Commission
v Italy
[2002] ECR I‑2235, paragraph 30; and Case C‑33/03 Commission
v United Kingdom
[2005] ECR I-1865, paragraph 25.
(7)  –	Case 262/85 Commission
v Italy
[1987] ECR 3073 (conformity), paragraph 39, and Case C‑38/99 Commission
v France
[2000] ECR I‑10941 (hunting periods), paragraph 53.
(8)  –	Commission
v Belgium
(cited above, footnote 3), paragraphs 21 and 22.
(9)  –	The provisions are quoted above, point 8.
(10)  –	As regards the compatibility of the provisions concerning starlings with Article 9 of the Wild Birds Directive, see below, point 121 et seq.
(11)  –	See above, point 6.
(12)  –	As regards a similar infringement in Burgenland, see above, point 21.
(13)  –	See my Opinion in Case C-235/04 Commission
v Spain
[2007] ECR I-0000 (IBA Inventory), points 94 and 95 .
(14)  –	As regards similar infringements in Burgenland and in Carinthia, see above, points 21 and 31.
(15)  –	As evidential basis for these arguments Austria has produced an expert opinion of the Zentralstelle Österreichischer Landesjagdverbände (Central Office of the Austrian Provincial Hunting Associations) on springtime hunting of capercaillie, black grouse and woodcock (Annex 3 to its rejoinder); it is dated 5 July 2005, so that the first time it could be adduced was as part of the rejoinder, and its submission was therefore not late.
(16)  –	It is possible that in its application, although it does not make this clear, the Commission is referring to the study by the Commission and the ORNIS Committee ‘Key concepts of Article 7(4) of Directive 79/409/EEC. Period of reproduction and prenuptial migration of Annex II bird species in the EU’, September 2001, available at http://ec.europa.eu/environment /nature/nature_conservation/focus_wild_birds/species_birds_directive/index_en.htm
reprod. However, for various bird species the Commission specifies close seasons which are different from those in that study (for example for the woodcock, the turtle dove, the wood pigeon and the collared dove).
(17)  –	Case C-157/89 Commission
v Italy
[1991] ECR I-57 (hunting periods), paragraph 15.
(18)  –	Commission
v Italy
(cited above, footnote 17), paragraph 14, and Case C-435/92 Association pour la protection des animaux sauvages and Others
[1994] ECR I-67, paragraph 9.
(19)  –	This is indicated in ‘Period of reproduction and prenuptial migration of Annex II Bird Species in the EU’, at pp. 121 and 124, available at http://ec.europa.eu/environment/nature/ nature_conservation/focus_wild_birds/species_birds_directive/pdf/25-31_en.pdf, and at p. 201, available at http://ec.europa.eu/environment/nature/nature_conservation/focus_wild_birds/ species_birds_directive/pdf/50-55_en.pdf.
(20)  –	Opinion (cited above, footnote 15), p. 5 (p. 65 of the rejoinder).
(21)  –	See Commission
v Italy
(cited above, footnote 17), paragraph 14, and Association pour la protection des animaux sauvages and Others
(cited above, footnote 18), paragraph 10.
(22)  –	Case C‑182/02 Ligue pour la protection des oiseaux and Others
[2003] ECR I‑12105, paragraphs 9 to 11, and Case C‑135/04 Commission
v Spain
[2005] ECR I‑5261, paragraph 17.
(23)  –	Case C-60/05 WWF Italia and Others
[2006] ECR I-5083, paragraph 34. See also Case C‑344/03 Commission
v Finland
[2005] ECR I‑11033 (spring hunting of aquatic birds), paragraphs 36, 39, 42 and 60.
(24)  –	Case 252/85 Commission
v France
[1988] ECR 2243 (conformity), paragraph 30, which at first sight appears to decide otherwise, is to be understood as meaning that the Commission was unable to cast doubt on the conclusive submission which the defendant Member State made on justification.
(25)  –	Commission
v Italy
(cited above, footnote 7), paragraph 7; Case C-79/03 Commission
v Spain
[2004] ECR I-11619 (parany), paragraph 24; and Commission
v Finland
(cited above, footnote 23), paragraph 31.
(26)  –	To this effect, see Commission
v Finland
(cited above, footnote 23), paragraphs 35, 38 and 40.
(27)  –	Capercaillie and black grouse fall within Article 4(1) of the Wild Birds Directive, because they are listed in Annex I, whereas the woodcock, being partially migratory, falls within Article 4(2).
(28)  –	As regards obligations outside special protection areas, see my Opinion in Case C-418/04 Commission
v Ireland
[2007] ECR I-0000, point 92 et seq.
(29)  –	Ligue pour la protection des oiseaux and Others
(cited above, footnote 22), paragraph 16; Spain
v Commission
(cited above, footnote 22), paragraph 19; and Commission
v Finland
(cited above, footnote 23), paragraph 33.
(30)  –	Commission
v Finland
(cited above, footnote 23) paragraphs 35 and 37.
(31)  –	Commission
v Finland
(cited above, footnote 23), paragraph 41.
(32)  –	Commission
v Finland
(cited above, footnote 23), paragraph 43 et seq.
(33)  –	Opinion (cited above, footnote 15), p. 2 (page 62 of the rejoinder).
(34)  –	In Annex 8 to the defence, p. 2 (p. 80 of the defence), autumn hunting is stated to be unobjectionable under Community law.
(35)  –	WWF Italia and Others
(cited above, footnote 23), paragraph 29.
(36)  –	WWF Italia and Others
(cited above, footnote 23), paragraph 36.
(37)  –	Case C-441/02 Commission
v Germany
[2006] ECR I-3449, paragraphs 59 and 60, and Case C‑365/97 Commission
v Italy
[1999] ECR I‑7773, paragraph 23.
(38)  –	See above, point 68.
(39)  –	See above, point 79.
(40)  –	See above, point 68.
(41)  –	As regards the prohibition on trading in Article 6 of the Wild Birds Directive, which likewise relates to species, see Commission
v Belgium
(cited above, footnote 3), paragraphs 6 and 7, and Case C-149/94 Vergy
[1996] ECR
I-299, paragraphs
8 et seq., 12 and 13.
(42)  –	Vergy
(cited above, footnote 41), paragraphs 12 and 13.
(43)  –	See above, point 79.
(44)  –	See above, point 91 et seq.
(45)  –	See above, point 68.
(46)  –	See above, point 79.
(47)  –	See above, point 79.
(48)  –	See above, point 79.
(49)  –	See above, point 68.
(50)  –	See above, point 15.
(51)  –	Case 236/85 Commission
v Netherlands
[1987] ECR 3989 (Conformity I), paragraphs 27 and 28.
(52)  –	Case 339/87 Commission
v Netherlands
[1990] ECR I-851 (Conformity II), paragraph 22.
(53)  –	See above, point 59.
(54)  –	Case C-118/94 Associazione Italiana per il WWF and Others
[1996] ECR I-1223, paragraph 21, and Commission
v Italy
(cited above, footnote 7), paragraph 7.
(55)  –	These provisions are set out above, point 8.
(56)  –	Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7).
(57)  –	On the relationship between Articles 12 et seq. and 16 of the Habitats Directive, which corresponds to that of Articles 5 et seq. and 9 of the Wild Birds Directive, see Case C‑6/04 Commission
v United Kingdom
[2005] ECR I‑9017 (conformity), paragraph 112.
(58)  –	Commission
v Italy
(cited above, footnote 7), paragraph 9.
(59)  –	WWF Italia and Others
(cited above, footnote 23), paragraph 24.
(60)  –	See above, point 15.
(61)  –	As regards the meaning of ‘deliberate’ in the Habitats Directive, see Case C-221/04 Commission
v Spain
[2006] ECR I‑4515 (hunting with snares), paragraph 71.
(62)  –	See above, point 15.