No C 191/14 Official Journal of the European Communities 22. 7. 91 
Opinion on the proposal for a Council Directive amending Annex II to Directive 79/409/ 
EEC on the conservation of wild birds 
(91/C 191/06) 
On 27 March 1991 the Council decided to consult the Economic and Social Committee, 
under Article 130S of the Treaty establishing the European Economic 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 
17 May 1991. The Rapporteur was Mr Wick. 
At its 287th plenary session (meeting of 29 May 1991) the Committee unanimously adopted 
the following Opinion. 
1. Gist of the Commission proposal 
1.1. The present proposal has been submitted by the 
Commission with a view to amending Council Directive 
79/409/EEC on the conservation of wild birds and, in 
particular, Annex II to the Directive, which lists the 
species which may be hunted in the Community. 
The proposal concerns primarily five species (jay, mag­
pie, jackdaw, rook and carrion/hooded crow) which 
are to be added to the list in Annex II/2, setting out 
the species which may be hunted only in the Member 
States indicated in the aforementioned Annex. 
1.2. These amendements have been put forward by 
the Commission in response to applications made to 
the Commission by a number of Member States. These 
applications were considered by the Commission on 
the basis of the scientific information provided by the 
Member States. 
The Commission took account, when examining these 
applications, of the fact that the species in question had 
been the subject of numerous derogations pursuant to 
Article 9 of Directive 79/409/EEC since that Directive 
came into force. The reason given for the derogations 
was that the species in question were responsible for 
damage to agriculture and/or wildlife. 
The Commission is therefore proposing that these speci­
es be included in Annex II/2 of Directive 79/409/EEC, 
thereby permitting them to be hunted. Such a provision 
would reduce the need for derogations and, given the 
population trends of these species, would not pose a 
threat to their survival. 
1.3. The practice of hunting as defined in Article 7 
of Directive 79/409/EEC, must comply with the prin­
ciples of wise use and ecologically balanced control of 
the species of birds concerned. These species must not 
be hunted, in particular, during their nesting season, 
while they are incubating or bringing up their young 
or, in the case of migratory birds, while they are 
returning to their breeding areas. The Commission considers that if normal hunting, as 
defined in Article 7, should prove to be insufficient for 
control purposes, derogations pursuant to Article 9 of 
the Directive could be granted for certain periods or 
hunting methods. These control measures are designed 
to prevent serious damage to crops, livestock and fishe­
ries and/or to protect wildlife. 
The Committee endorses the proposal, subject to the 
following observations: 
2. General comments 
2.1. In its Opinion dated 25/26 May 1977 (see OJ 
No C 152, 29. 6. 1977) the Committee warmly wel­
comed the general principles underlying the Com­
mission's proposal for a Council Directive on the con­
servation of wild birds. The Committee considers that 
this joint measure for the conservation of wild birds 
still remains an extremely effective means of protecting 
the environment and conserving the bird population of 
the Community as a whole. Furthermore, it is a measure 
which is likely to be approved by the overwhelming 
majority of the people in the Member States. 
2.2. In the abovementioned Opinion, however, the 
Committee also drew attention to the possible conflict 
between, on the one hand, economic developments, 
such as progress in agriculture and the development of 
rural areas and, on the other hand, the protection 
of birds. The Committee expressed the hope that the 
Directive might be applied in such a way as to achieve 
the necessary compromise in that respect. 
2.3. It should be pointed out that, in its original 
proposal for a Directive [Doc. COM(76) 676 final], the 
Commission proposed that the five species which are 
the subject of the current proposal be included in an 
Annex II/3; this listed a total of thirteen species which 
could be excluded from the normal provisions appli­
cable to the other species listed in Annex II/l and Annex 
II/2, provided that this did not lead to an undesirable 
reduction in the population levels of the 13 species 
concerned. 
22. 7. 91 Official Journal of the European Communities No C 191/15 
In the explanatory memorandum to its 1976 Proposal, 
the Commission justified the classification of species in 
Annex II/3 by the fact that the species involyed 'are 
likely to cause damage'. Such damage not only affected 
economic activities such as agriculture, but also other 
wildlife species. The Commission also noted that 'dam­
age occurs fairly regularly'. 
2.4. In its Opinion dated 25/26 May 1977, the Com­
mittee endorsed such a principle and even pointed out 
that the exclusion referred to in Article 7(5) in respect 
of species listed in Annex II/3 should be extended 'so 
that the eggs of these species might be legitimately 
harvested'. In the Committee's view such a provision 
would improve the Directive by authorising the legit­
imate exploitation of common species which cause 
damage, without in any way jeopardizing the protection 
afforded to useful or rare bird species. 
2.5. When Directive 79/409/EEC was adopted by the 
Council, the Committee discovered that this aspect of 
its Opinion had not been taken into account and that 
the majority of the thirteen species had been deleted 
from Annex II/3, and even from Annex II altogether, 
with the result that they would be afforded strict protec­
tion by law. 
The Committee strongly deplores this decision taken 
by the Council since the present proposal, which seeks 
to include five of the thirteen species once again in 
Annex II, provides retrospective proof that the stand 
taken in the Committee's Opinion of 25/26 May 1977 
was justified. It is clear from the information provided 
by the Commission that the derogation provisions 
under Article 9 which have been in force since 1979 are 
not operating satisfactorily in the case of these species 
and have also involved a considerable amount of admin­
istrative work. 
The Commission now also recognizes that derogations 
pursuant to Article 9 should be applied less often in the 
case of those species which regularly cause damage 
to agriculture and/or wild fauna, thereby once again 
endorsing the standpoint underlying the Committee's 
Opinion of 1977. 
2.6. It is undoubtedly no longer appropriate to speak 
of 'harmful' species (the term 'opportunist' species 
should be used instead) since no animal species is intrin­
sically either entirely harmful or beneficial to a greater 
or lesser extent, under particular circumstances, during 
particular periods or in particular regions. The Com­
mittee does, however, consider that in the case of those 
species of birds which cause damage fairly regularly in 
large areas of the Community, or which destroy or 
threaten to destroy the ecological balance, a flexible 
system of population control should be possible. In 
accordance with Article 2 of Directive 79/409/EEC this 
system should correspond to 'ecological, scientific and 
cultural requirements, while taking account of econ­
omic and recreational requirements'. 2.7. The Berne Convention of 1979 on the conser­
vation of European Wildlife and natural habitats, was 
made legally binding throughout the European Com­
munity by Council Decision 82/72/EEC (see OJ No 
L 38, 10. 2. 1982). As regards birds, the Convention 
specifically excludes the 'opportunist species' from the 
special protection measures. This therefore means that 
such species are accorded different legal status by two 
sets of legal provisions applicable at EC level—a situ­
ation which will lead to a deplorable state of legal 
uncertainty. 
2.8. The Committee therefore wonders why the 
Commission does not take up the idea behind the 
original 1976 draft Directive, i.e. the provision of a 
separate Annex II/3 covering 'opportunist' bird species 
in respect of which a lower level of protection would 
apply (this would not therefore mean the complete 
removal of all protection measures). Under the current 
proposal, full use is still to be made under certain 
circumstances of the derogations pursuant to Article 9 
(see point 1.3 above). 
It has been scientifically established, particularly in the 
case of the five species in question but also with regard 
to other bird species listed in Annex II/3 of the Com­
mission proposal of 1976, that damage occurs primarily 
in the spring (the eggs and young of other, rarer bird 
species suffer from such damage). Control measures in 
accordance with Article 7 are not authorized at this 
time of the year. 
Considerable damage—in particular damage to crops 
—occurs when control measures are authorized only in 
the form of derogations pursuant to Article 9. Such 
damage, which occurs primarily in the spring and sum­
mer, is caused by birds such as rooks and, in particular, 
wood pigeons. The Committee considers that legis­
lation under which numerous derogations have to be 
granted every year in the Community on a limited 
number of grounds—which are always the same—is 
inappropriate legislation. Derogations should, by their 
very nature, be limited to specific circumstances which 
are not regular occurrences, so as not to undermine 
measures to protect those bird species which really need 
protection. 
2.9. The Committee recognizes that a degree of flexi­
bility in legislation is desirable, in view of the variability 
of social and economic developments and the fact that 
natural phenomena never remain constant. In particu­
lar, the various Annexes to Directive 79/409/EEC 
should be reviewed at specified intervals (e.g. every 
five years) in accordance with pre-determined criteria. 
Species which today may be rare may become very 
numerous some years later as a result of changed 
environmental factors. The reverse situation also 
occurs. The introduction of new agricultural techniques 
or crops may also suddenly result in a greater level of 
damage. It should also be possible to take account of 
regional differences in the Community. 
No C 191/16 Official Journal of the European Communities 22. 7. 91 
2.10. A species of bird which provides a good illus­
tration of this problem is the cormorant (Phalacrocorax 
carbo). Over the last ten years the number of breeding 
pairs of this species in the Community has risen dra­
matically (e.g. in Denmark the figure increased from 
2 037 in 1980 to 24 000 today; in the Netherlands there 
has been an increase from less than 3 000 at the begin­
ning of the 1970s to 13 500 today; and in France there 
has been a three-fold increase in the number of over­
wintering cormorants in the last 20 years, the figure 
now being in excess of 25 000 individual birds). As a 
result of this development economic damage to fisheries 
has reached unacceptable levels in some areas. Exampl­
es have occurred in Germany: four major aquaculture 
centres in Schleswig-Holstein have had to cease oper­
ations because of predation by cormorants. In Bavaria 
the food requirements of the population of 4 000 cor­
morants recorded in 1990 was estimated at some 360 
tonnes of fish for the period from October to March. 
A further species whose numbers have risen consider­
ably and which causes major damage in some areas is 
the eider duck (Sotnateria molissima). In the Gulf of 
Spezia in Northern Italy, for example, some 600 eider 
ducks have over the last two years been thoroughly 
destroying a 13-hectare area of mussel beds. The eider 
duck is listed in Annex II/2 but hunting of this species 
is authorized in only three Member States (Denmark, 
France and Ireland). A degree of control through hunt­
ing is therefore not permitted under the Directive in the 
abovementioned area. 
Financial compensation can, of course, be awarded in 
such cases to cover the losses incurred. In the Commit­
tee's view, however, there is at the same time a need to 
authorize some control over population numbers in 
cases where total protection of a species is no longer 
necessary or even desirable. 
3. Specific comments 
3.1. Comments on the Articles of the proposal 
3.1.1. Article 2 
The Committee welcomes the provision whereby Mem­
ber States are to comply with the Directive by 16 August 
Done at Brussels, 29 May 1991. 1991 at the latest, but doubts whether it is realistic to 
stipulate such a short deadline. 
3.2. Comments on Annex 11/2 
3.2.1. Species No 74 — Pica pica (Magpie) 
The Committee notes that hunting of this species is not 
authorized in three Member States (Greece, Ireland and 
Italy), even though scientific findings also demonstrate 
that there has been a considerable increase in the magpie 
population in the abovementioned States. The Commit­
tee commends the Commission for setting out the rel­
evant data in a scientific report. The Commission has, 
however, yet to receive formal notification from the 
Member States in question. The Committee would urge 
the Commission to endeavour once again to prevail 
upon these States to forward their notifications, thereby 
enabling the established facts to be taken fully into 
account by all EC members. 
3.2.2. Species No 77—Corvus cor one 
(Carrion/Hooded Crow) 
For this species the same situation applies in the same 
three Member States (Greece, Ireland and Italy). These 
three Member States should authorize the hunting of 
this species also. 
3.2.3. The Committee would urge that other species 
of birds which have been shown to cause damage on a 
fairly regular basis to crops, livestock and fisheries or 
to other wildlife be added to the list in Annex II. There 
is a need to consider, on a case-by-case basis, the extent 
to which the conditions laid down in Article 7(4) of 
Directive 79/409/EEC make effective control possible 
without the need for constant recourse to the dero­
gations pursuant to Article 9. 
The Chairman 
of the Economic and Social Committee 
Francois STAEDELIN