61989J0157
REPORT FOR THE HEARING
in Case C-157/89 (
*1
)
I — Legal background
1. The Community legislation
Article 18(1) of Directive 79/409/EEC as amended by Council Directive 81/854/EEC of 19 October 1981 adapting, consequent upon the accession of Greece, Directive 79/409/EEC on the conservation of wild birds (Official Journal 1981, L 319, p. 3) (hereinafter referred to as ‘the Directive’), provides that the Member States are to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive within two years of its notification and that they must inform the Commission thereof forthwith. Since the Directive was notified on 6 April 1979, the period laid down by Article 18 expired on 6 April 1981.
Article 7(4) of the Directive requires Member States to prohibit the hunting of wild birds during the rearing season and during the various stages of reproduction. In the case of migratory species, Member States are required to prohibit the hunting of such species during their period of reproduction and during their return to their rearing grounds. Article 7(4) is worded as follows :
‘Member States shall ensure that the practice of hunting, including falconry if practised, as carried on in accordance with the national measures in force, complies with the principles of wise use and ecologically balanced control of the species of birds concerned and that this practice is compatible as regards the population of these species, in particular migratory species, with the measures resulting from Article 2. They 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. Member States shall send the Commission all relevant information on the practical application of their hunting regulations.’
2. The relevant Italian legislation
The national provisions which are at issue in this case are as follows.
According to Article 11 of Law No 968/77 of 27 December 1977 entitled ‘General Principles and Provisions for the Protection and Conservation of Fauna and for the Regulation of Hunting’(Gazetta Ufficiale della Repubblica Italiana No 3, 4.1.1978), as amended by Decrees of the President of the Council of Ministers of 20 December 1979(Gazetta Ufficiale della Repubblica Italiana No 1, 2.1.1980) and 4 June 1982(Gazetta Ufficiale della Repubblica Italiana No 155, 8.6.1982) concerning the list of species which may be hunted and hunting seasons, it is prohibited to kill, capture, keep or market specimens of any species of Italian wild birds. By way of derogation from those prohibitions the following species of birds may be hunted during the periods specified below:
—
species which may be hunted from 18 August until 31 December:
quail (coturnix coturnix),
turtle dove (streptopelia turtur),
blackbird (turdus merula);
—
species which may be hunted from 18 August until 28 February:
mallard (anas platyrhinchus)
coot (fulica atra),
moorhen (gallinula chloropus),
tree sparrow (passer montanus),
teal (anas crecca),
gadwall (anas strepera),
shoveler (anas clypeata),
pochard (aythya ferina),
curlew (numenius arquata)
black-tailed godwit (limosa limosa),
redshank (tringa totanus),
ruff/reeve (philomachus pugnax) ;
—
species which may be hunted from 18 August until 10 March:
Italian sparrow (passer Italiae),
house-sparrow (passer domesticus),
starling (sturnus vulgaris),
water rail (rallus aquaticus),
wigeon (anas penelope),
pintail (anas acuta),
garganey (anas querquedula),
tufted duck (aythya fuligula),
snipe (capella gallinago gallinago),
wood pigeon (columba palumbus),
jack snipe (lymocryptes minimus),
golden plover (charadrius apricarius);
—
species which may be hunted from the third Sunday in September until 13 December:
ptarmigan (lagopus mutus),
black grouse (lyrurus tetrix),
capercaillie (tetrao urogallus),
rock partridge (alectoris graeca),
barbary partridge (alectoris barbara),
red-legged partridge (alectoris rufa),
partridge (perdix perdix),
pheasant (phasianus colchicus),
American partridge;
—
species which may be hunted from the third Sunday in September until 28 February:
woodcock (scolopax rusticóla),
fieldfare (turdus pilaris);
—
species which may be hunted from the third Sunday in September until 10 March:
skylark (alauda arvensis),
song-thrush (turdus philomelos),
redwing (turdus iliacus),
jackdaw (coloeus monedula),
rook (corvus frugilegus),
carrion crow (corvus corone),
lapwing (vanellus vanellus).
Also according to Article 11 of Law No 968/77, changes may be made to the list of the species which may be hunted by decree of the President of the Council of Ministers after consulting the Istituto Nazionale di Biologia della Selvaggina (National Biological Institute for Wild Animal Species) and the Comitato Tecnico Venatorio Nazionale (National Technical Committee for Hunting).
In addition, the first paragraph of Article 12 of Law No 968/77 authorizes the Italian regions to ‘prohibit or restrict the hunting of particular species of game referred to in Article 11 during predetermined periods for important, substantiated reasons connected with level of wildlife present or on account of particular conditions affecting the environment or seasonal or climatic conditions or on account of disease or other calamities’.
The regional hunting seasons for 1989/90 are as follows:
Regions
Opening date
Abruzzo
third Sunday in September
Basilicata
20 August
Calabria
20 August
Campania
20 August
Emilia-Romagna
17 September
Lazio
third Sunday in September
Liguria
third Sunday in September
Lombardy
17 September (non-migratory)
17 September (migratory)
Marche
18 August
Molise
Province of Campobasso
19 August
Province of Isernia
17 September
Puglia
20 August
Piedmont
20 September
Tuscany
third Sunday in September
Veneto
third Sunday in September
Umbria
17 September
Friuli-Venezia-Giulia
Province of Trieste
13 August (migratory)
1 October (non-migratory)
Province of Udine
13 August (migratory)
17 September (non-migratory)
Province of Gorizia
13 August (migratory)
1 October (non-migratory)
Province of Pordenone
13 August (migratory)
8 October (non-migratory)
Region of Sicily
27 August: quail, turtle dove, blackbird, Italian sparrow, tree-sparrow, starling, magpie, teal, gadwall, wigeon, pintail, garganey, shoveler, pochard, snipe, curlew, jacksnipe, tufted duck, wood pigeon.
24 September: rock partridge, mallard, coot, moorhen, snipe, skylark, fieldfare, song-thrush, redwing, jackdaw, crow, lapwing
Sardinia
6 August
Valle d'Aosta
19 September
Autonomous Province of Bolzano
1 September
Autonomous Province of Trento
10 September
II — Background to the case
The Commission, considering that certain provisions of the Italian legislation on the hunting of birds did not comply with Directive 79/409, requested the Italian Republic by letter of 9 December 1987, pursuant to Article 169 of the Treaty, to submit its observations on the subject. There was no reply to that letter. Therefore the Commission, by letter dated 5 May 1988, delivered a reasoned opinion in accordance with Article 169. There was no response to that letter either.
III — Written procedure
By application lodged at the Court Registry on 2 May 1989, the Commission of the European Communities brought an action before the Court under Article 169 of the EEC Treaty for a declaration that the Italian Republic had failed to fulfil its obligations in relation to the conservation of wild birds.
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. However, it asked the parties to specify, on the basis of scientific publications, their factual allegations relating to the reproduction and rearing seasons and to the migration patterns of the species of birds in question.
IV — Forms of order sought by the parties
The Commission claims that the Court should:
Declare that, by authorizing the hunting of various species of wild birds during their rearing season and their period of reproduction, and of various migratory species during the period in which they return to their rearing grounds, the Italian Republic has failed to fulfil its obligations under Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds;
Order the defendant to pay the costs.
The Italian Government contends that the Court should:
Dismiss the application;
Order the defendant to pay the costs.
V — Submissions and arguments of the parties
Admissibility
1.
The Italian Government considers that the complaints set out in the application have already been made by the Commission in Case 262/85 which was the subject of the judgment of the Court of 8 July 1987(Commission v Italian Republic [1987] ECR 3073). It states that the Court rejected both limbs of the third complaint in these proceedings. In consequence, the principle non bis in idem bars a fresh examination of those questions in other proceedings.
2.
The Commission states that in this case the application does not relate to the provision in Italian legislation for different opening and closing dates for the hunting season in order to take account of the different periods during which birds must be protected, but to the validity of the dates chosen by the Italian legislature for the various hunting periods as regards certain species of birds.
The Commission states that the third complaint in Case 262/85, which gave rise to the judgment of the Court of 8 July 1987, consisted of two limbs — one to the effect that there was no provision for different dates for the opening and closing of the hunting season, which was rejected by the Court as unfounded, and another concerning the appropriateness of opening and closing the hunting season at particular dates, which was dismissed on the ground that it extended the scope of the complaint made in the pre-litigation procedure.
Substance
1.
The Commission maintains that the Italian rules fixing the opening and closing date of the hunting season for certain species of birds do not take account of the requirements of Article 7(4) of the Directive.
(a) First complaint
The Commission claims that the Italian provisions authorizing the hunting of the coot, moorhen, mallard and blackbird from 18 August infringes Article 7(4) of the Directive, because the reproduction and rearing period of those species is not yet over on that date.
The Commission gives the following particulars in relation to those birds:
coot: in southern Europe the laying period lasts until mid-July and the rearing period lasts between 55 and 60 days;
moorhen: in southern Europe the laying period lasts until July and the rearing period lasts between 52 and 99 days;
mallard: the laying period is between March and the beginning of July, sometimes even later. The young become independent between the fiftieth and sixtieth day after hatching;
blackbird: blackbirds normally lay several times a year. The latest reproduction is taking place as the hunting season opens.
(b) Second complaint
The Commission considers that the directive is infringed by the national rules authorizing hunting until 28 February and even 10 March in the case of certain migratory species which cross Italy during January, February and March on their way to their breeding grounds in central and northern Europe. The birds concerned as follows:
(i)
Hunting authorized until 28 February:
coot (fulica atra),
gadwall (anas streperà),
teal (anas creced),
mallard (anas platy rhinchus),
shoveler (anas clypeatd),
pochard (ay thy a ferina),
redshank (tringa totanus),
ruff/reeve (philomachus pugnax),
curlew (numenius arquata),
fieldfare (turdus pilaris),
(ii)
Hunting authorized until 10 March:
wigeon (anas penelope),
pintail (anas acuta),
garganey (anas querquedula),
tufted duck (aythya fuligula),
golden plover (charadrius apricarius),
snipe (gallinago gallinago),
black-tailed godwit (limosa limosa),
song-thrush (turdus philomelus),
redwing (turdus iliacus).
2.
The Italian Government challenges the basis of the action in so far as the complaints are based on factual claims (that the reproduction and rearing season or the species referred to in the first complaint lasts until 18 August; that the species referred to in the second complaint cross Italy in January, February and March) which the Commission has to prove. It further considers that those factual claims are not proved by the bibliography contained in the application.
(a) First complaint
The Italian Government considers that the Commission's claim that the coot, the moorhen, the mallard and the blackbird, which may be hunted in Italy as from 18 August, are still reproducing and rearing at that date is based solely on the bibliography set out in the application and that that list of works is of a general nature and cannot be applied specifically to the situation obtaining in Italy.
In its view, the species in question are potentially independent as from 18 August. There may, however, be instances of late clutches and incubation, with the result that in some cases the young may still be dependent in the second half of August, but this may not be extrapolated to cover the whole of Italy and the cases in question are exceptional.
The Italian Government maintains that the national legislature has taken due account of the requirement to protect all the species during the rearing and reproduction periods. In its view, Law No 968/77 has tackled that requirement scientifically in a way related specifically to Italy, by adopting a hunting calendar embodying a variety of hunting seasons which are designed specifically to protect the various species of birds during the delicate stages of rearing and reproduction.
The Italian Government adds that the regions may deal with such exceptional, non-generalized situations by exercising the power conferred on them by the first paragraph of Article 12 of Law No 968/77. Consequently, the Italian legislation makes provision for instruments whereby the opening of the hunting season may be postponed in areas where such exceptional circumstances come to pass.
The Italian Government points out that more than half the Italian regions, for reasons other than those set out in the first paragraph of Article 12 of Law No 968/77, and above all for reasons connected with tourism or agriculture, have postponed until mid-September or later the general opening of the hunting season in their areas. As a result, thanks to the hunting calendars in force, the danger of hunting taking place is in fact precluded in more than half the Italian regions.
The Italian Government points out that that exceptional provision enables the protection of birds in the usual nesting, breeding and rearing period to be stepped up as a result of action by the regions, which, in particular cases, may alter the local hunting calendar, if the nesting, breeding and rearing period is altered by seasonal or climatic conditions, in order to ensure that the protection generally provided by the law is guaranteed also in those particular special circumstances.
The Italian Government states that, as a rule, the reproduction period of the coot, the moorhen and the blackbird does not overlap with the hunting season. Only mallards may in some regions of Italy possibly still be dependent during the initial stage of the hunting season. There is in Italy a very marked migratory flow of mallards which takes place after the birds have bred and in comparison the size of the mallard population which nests in Italy in a given year is tiny. As a result, only a few local groups — and then only in certain areas of Italy — are likely to be in the last stage of the reproductive cycle in hunting seasons provided for by the national calendar.
(b) Second complaint
The Italian Government maintains that the claim that the species of migratory birds mentioned in the application cross Italy during January, February and March on their way to their nesting areas in central and northern Europe, with the result that they must be protected as from January, yet they may be hunted in Italy until 28 February or even 10 March, is also based on the bibliography set out in the application.
The Italian Government states that the national legislation in question tailored the opening and closing dates of the hunting season to suit the requirements of the International Convention for the Protection of Birds, adopted in Paris on 18 October 1950, following Italy's accession to the Convention (Law No 812/78 of 24 November 1978). Article 2(a) of the Convention provides that migrants must be protected during their return flight to their nesting ground, particularly in March, April, May, June and July.
The Italian Government states that the Decree of 20 December 1979, which fixed 28 February and 10 March as the opening dates for the hunting of the species listed in the application, was adopted after consulting the Istituto Nazionale di Biologia della Selvaggina (National Biological Institution for Wild Animal Species) and the Comitato Tecnico Venatorio Nazionale (National Technical Committee for Hunting). That decree, which relates to the specific situation in Italy, brought the national hunting calendar into line with the 1950 Convention and requires the closure of the hunting season to be geared to the natural propensities and migratory requirements of the individual species.
The Italian Government maintains that, in the absence of contrary requirements in Directive 79/409 or of specific evidence to the contrary relating specifically to the situation in Italy, the relevant requirements of the Paris Convention may be adopted as the yardstick for the appropriate protection of migratory birds after adjustment in relation to the aim pursued by Article 7(4) of the Directive.
The Italian Government also refers to the preamble to the Decree of 20 December 1979, which states that at least for the first 10 days of March Italy is not normally affected by significant bird migration and that individual birds of a given species which are found in Italy up to that date generally have not begun their return journey to their rearing grounds. That reasoning is even more applicable to February and attests to the fact that massive migration does not occur until the second half of March.
In the Italian Government's view, the phrase ‘during their return to their rearing grounds’ in Article 7(4) of the Directive leaves a certain discretion in determining that period both in absolute terms and in each Member State. It therefore seems that it can be considered that the Directive and the Convention are based on the same requirements as regards the protection of migratory species during their return to their rearing grounds. It follows that since the national legislation at issue has been tailored to suit the requirements as to protection which are set out in the Paris Convention, it also complies with the same requirements as are set forth in Directive 79/409.
The Italian Government adds that special situations affecting migratory species may also receive extended protection from the regions, pursuant to Article 12 of Law No 968/77.
3.
As regards the scientific basis for its claims, the Commission observes that the works cited in the application, and in particular Cramps & Simmons, Handbook of the Birds of Europe, the Middle East and North Africa (Oxford University Press, 1980-88, five volumes, 4400 pages), are essential reference works and unchallenged in international scientific circles; their merit cannot be denied by a mere assertion of the Italian Government, unsupported by bibliographical references, to the effect that, although they are concerned with southern Europe, they do not apply to Italy owing to its special features and geographical complexity.
On the contrary, the relevance of Cramps & Simmons to the situation in Italy, in particular as regards the spring migration of protected birds, is confirmed by the report presented in May 1986 to the Nuremberg International Congress ‘Wildtiere und Umwelt’ (Wild animals and environment) by the Istituto Nazionale di Biologia della Selvaggina, that is to say, precisely the Institution which is cited in the preamble to the Decrees of 20 December 1979 and 4 June 1982.
The Commission observes that that report, which is entitled ‘Problems of the conservation of migratory birds with particular regard to hunting during their return to their rearing grounds’, refers in several places to Cramps & Simmons.
Furthermore, the report states as follows with regard to the situation of the migratory species crossing the Mediterranean areas:
‘The disturbance caused by hunting gives rise to constant stress among migrating groups, which causes them to consume greater energy in moving on and fleeing and, at the same time, tends to reduce considerably the time which they can devote to feeding. Both these factors have adverse repercussions on the energy balance of each individual and are therefore likely to make an indirect contribution towards increasing overall mortality in the populations subject to prolonged pressure from hunting. This phenomenon is very serious in situations or periods in which the birds are weakened or have to feed copiously in order to accumulate energy for migration.
During the second half of winter, preparation for the return journey constitutes migrants' main activity and, in addition, in the case of several species that migration takes place concurrently with courtship and mating. Even limited hunting during that period can have adverse effects on productivity during the nesting season which follows.
During the journey to their summer quarters birds which stop are generally forced to do so in order to feed; as a general rule that migration is faster than the autumnal migration owing to major hormonal phenomena. Mediterranean areas especially, such as Italy, constitute for many long-range migratory species from Africa the first suitable staging post. Several species which in the autumn follow the more easterly routes cross the Sahara and the Mediterranean non-stop in order to reach their rearing grounds more quickly.
(...)
If the hunting season is excessively extended it may have an adverse effect, not only on the species which are hunted, but also, owing to the disturbance it causes, on various species which are not hunted but occupy the same habitat and it may be regarded as a factor limiting the possibilities for the colonization of new territory by pioneer migratory species. This is borne out by, for example, the recent colonization by several species of certain areas of Piedmont following the early closing of the hunting season in that area.’
The report contains a ‘note on the migration of species which are currently hunted in Italy, having regard in particular to the phenology of their return across Italy to their rearing grounds’ together with a brief analysis of the phenology of the return migration to the nesting grounds for the majority of species hunted in Italy.
According to the report, an analysis of data kept at the Istituto Nazionale di Biologia delia Selvaggina (national ringing programme) for birds ringed abroad and caught or notified in Italy has supplied more detailed information in relation to Italy. A total of 3300 cards have been studied relating to 17 species which are either entirely migratory through Italy or partially migratory and partially wintering there. In an annex to the report there is a graph of sightings over time for the species in question. In the case of wholly migratory species the period analysed extends from January to April, whilst in the case of species which spend a major proportion of the winter in Italy the period extends from September to April.
The graph shows the wigeon (anas penelope), the gadwall (anas streperà), the teal {anas crecca), the mallard (anas platyrhynchus), the pintail (anas acuta), the garganey (anas querquedula), the shoveler (anas clypeata), the pochard (aythya ferina), the tufted duck (aythya fuligula), the coot (fidica atra), the golden plover (pluvialis apricaria), the lapwing (vanellus vanellus), the ruff/reeve (philomachus pugnai), the snipe {gallinago gallinago), the black-tailed godwit (limosa limosa), the curlew (numenius arquata), the redshank {tringa totanus), the starling (stumus vulgaris), the blackbird (turdus merüld), the fieldfare (turdus pilaris), the song-thrush (turdus philomelos) and the redwing (turdus iliacus).
The Commission observes that according to the Istituto Nazionale di Biologia della Selvaggina hunting must end in mid-winter and geographical, climatic and ecological considerations determine what must be understood by mid-winter at the various latitudes. The Institution determined mid-winter as no later than 31 January in the case of southern Europe.
The Commission takes the view that the international scientific literature which it cites constitutes sufficient proof of the factual claims made in the application, the reliability is in no way called in to question by unsubstantiated allegations.
4.
The Italian Government considers that it is for the applicant to prove the alleged inadequacy of the protection offered by the national Law by reference to the individual species of migratory birds and to the geographical situation of Italy. The complaints are put forward in a general, blanket manner without taking account of the particular situation of each migratory species.
The Italian Government maintains that the propositions set out in the studies cannot be treated as if they were objective, irrefutable factors when they refer to specific, actual situations. In its opinion, it is not sufficient to depict a general scientific model of southern Europe and to apply it indiscriminately to the situation in Italy, thereby equating Italy completely, in spite of its special features and complex geography, to other countries of southern Europe.
M. Diez de Velasco
Judge-Rapporteur
(
*1
)	Language of the case: Italian.