Opinion on the proposal for a Council Directive amending Directive 79/409/EEC on the conservation of wild birds () (94/C 393/19)

On 28 March 1994 the Council decided to consult the Economic and Social Committee, under Article 130s of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for Protection of the Environment, Public Health and Consumer Affairs, which was responsible for preparing the Committee's work on the subject, adopted its Opinion on 5 September 1994. The Rapporteur was Mr Wick.

At its 318th Plenary Session (meeting of 14 September 1994) the Economic and Social Committee adopted the following Opinion by a majority vote in favour and six votes against, with five abstentions.

1. Introduction

1.1. Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds () stipulates that Member States are to take the requisite measures to establish a general system of protection for all species of birds naturally occurring in the wild state in the European territory of the Member States to which the Treaty applies (Article 5) and take the requisite measures to preserve, maintain or re-establish a sufficient diversity and area of habitats for all these species.

The species listed in Annex II to the 1979 Directive may, however, be hunted in accordance with national legislation (Article 7). Member States are to ensure that the practice of hunting complies with the principles of wise use and ecologically balanced control of the species of birds concerned. They are to ensure in particular that migratory species shall not be hunted during their return to the rearing grounds [Article 7(4)].

1.2. The Committee notes the Commission's statement that in most EU Member States the closing date for the hunting season for migratory species is generally 31 January. In some Member States, however, the season does not close until 28 February or 10 March. In a number of other Member States different regions have different closing dates.

1.3. In a judgement issued on 19 January 1994, the Court of Justice gave a narrow interpretation of the concept of 'return to their rearing grounds', by stipulating that the closing date of the hunting season in respect of migratory species of birds must be set in such a way as to guarantee full protection for these birds during their pre-breeding migration. This applies even if a number of birds of a particular species start their migration at an earlier date than the average flow of migrants.

In pursuance of this judgement, Member States could therefore virtually be obliged to close the hunting season in respect of a number of migratory species by 31 January, or theoretically even in December, in view of the fact that biological data (in particular that supplied by the ORNIS database) shows that certain individual birds may start their pre-breeding migration before that date, even though the main migration period occurs well after that date.

Bearing in mind that Directive 79/409/EEC explicitly recognizes that hunting 'constitutes acceptable exploitation' (11th recital) and in view of the fact that Article 2 of the Directive refers to 'ecological, scientific and cultural requirements', in addition to 'economic and recreational requirements', the European Court of Justice's interpretation appears to go beyond the intentions of most Member States and may lead to a situation of legal uncertainty in some States.

1.4. In Draft Directive COM(94) 39, the Commission is seeking to clarify the legal situation by defining Member States' discretionary power, whilst linking it to criteria guaranteeing full observance of the principle of wise use.

1.5. The Committee endorses the Draft Council Directive, subject to the following observations.

2. General observations

2.1. In its Opinion of 25/26 May 1977 () the Committee warmly welcomed the general principles underlying the Draft Directive, but it also drew attention, even at that stage, to the need for compromise between the various interests concerned in order to avoid conflicts which could affect the way in which the Directive was implemented.

2.2. More recently, on 29 May 1991, the Committee unanimously adopted an Opinion () on an initial proposal to amend Directive 70/409/EEC. This amendment acknowledged, inter alia, that, in view of the fact that natural phenomena do not remain constant and economic and social developments are intrinsically subject to fluctuations, a degree of flexibility should be incorporated in the legislation; it was proposed, inter alia, that the various annexes to Directive 79/409/EEC be verified at set intervals (e.g. every five years) in accordance with predefined criteria.

2.3. The Draft Directive clarifies the term 'return to their rearing grounds' (Article 7.4 of Directive 79/409/EEC) by adding a series of criteria which are set out in a new Annex VI to the 1979 Directive. The Commission further proposes that a new Article 15 be inserted in Directive 79/409/EEC stipulating that the new Annex VI might also be adapted to technical and scientific progress (as is the case with Annexes I and V) by the ORNIS committee set up for that purpose under Article 16 of the abovementioned Directive.

2.3.1. The criteria set out in the new Annex VI, for the purpose of determining the end of the hunting season were already included in the Second Report on the Implementation of Directive 79/409/EEC - document COM(93) 572 final of 24 November 1993, Annex 4, and they constitute the Commission's conclusions following the work carried out by the ORNIS Committee for the adaptation of the Directive to technical and scientific progress. That Committee, which comprises representatives of all the Member States, is assisted in its work by a scientific working group made up of experts from the 12 EU States.

The Committee notes the Commission's declaration that the provisions set out in the Draft Directive are based on the results of the abovementioned work. The Committee does, however, deplore the fact that it did not have access to these results at an early enough point in time. The Committee also proposes that the findings be made available to all interested parties on request.

2.3.2. The concept of 'conservation status' is a key aspect of the criteria set out by the Commission; this concept is also clarified in the abovementioned Report. According to the ORNIS Committee, species with an unfavourable conservation status are those with some populations declining within the EU or with very low population levels. Unfortunately this term is not defined in the Commission's proposal. An indication should be given of where an official definition of the term is to be found.

2.3.3. The 10 day period marking the beginning of the migratory passage in respect of each species and each region is a second variable; this complex biological phenomenon, which is influenced by a number of factors, requires scientific study and analysis.

2.3.4. The Commission has informed the Committee that the scientific and technical information required for the implementation of Directive 79/409/EEC and, more especially, for the application of the criteria under review by the Committee will in future be obtainable from, in particular, the ORNIS database.

2.3.5. The Committee also notes one of the conclusions set out in the Report referred to in point 2.3.1, namely that 'the deterioration and destruction of habitats pose more serious threats to the survival of wild birds in Europe than hunting as such'.

The Committee therefore insists that the directive, if adopted, be accompanied by the allocation of the increased funds for bird habitat preservation and conservation necessary to restore stocks.

2.4. The Committee finds the Commission's proposal for different closing dates for different birds too complex and unclear for its effective operation by hunters, conservationists, landowners, police and the courts. The Commission's proposal would also increase the opportunities for wild bird hunting because it would allow most Member States to choose to extend their open season for hunting by a month. The new month for hunting - February - is one when many birds are migrating and their numbers are low after winter.

The Committee would therefore prefer to see a single closing date, based on the one used by the vast majority of Member States, 31 January.

3. Specific comments

3.1.

Final recital

Whilst the French and English versions of the proposal clearly state that the Member States may use the proposed criteria 'to determine the end of the hunting season' the German version, for example, refers only to the determination of the hunting period. All versions should be amended accordingly.

3.2.

Article 1.1

The proposal stipulates that 'Member States shall also ensure that these species are protected during their return to their rearing grounds'. Bearing in mind that Directive 70/409/EEC provides for a general scheme for protecting all species of birds, including those listed in Annex II, and with a view to making it clear that the hunting season is to be closed in good time, the Committee proposes that the term 'are protected' be replaced by 'are not hunted'.

3.3.

Article 1.2

The Committee points out that both the French and English versions of the Proposal refer to adaptation of the Annex 'to technical and scientific progress', while the German version, for example, refers only to 'technical progress'. Here, too, all versions should be amended accordingly.

3.4.

Article 2

The Committee expects that the Member States will not only pass the necessary laws, regulations and administrative provisions but that they will also check that they are properly implemented. This task will also involve ensuring that normal hunting practices do not lead to species with an unfavourable conservation status (a) being confused with other species and (b) being subjected to an intolerable level of disturbance.

Done at Brussels, 14 September 1994.

The President

of the Economic and Social Committee

Susanne TIEMANN

() OJ No C 100, 9. 4. 1994, p. 12

() OJ No L 103, 25. 4. 1979.

() OJ No C 152, 29. 6. 1977.

() OJ No C 191, 22. 7. 1991.