ORDER OF THE PRESIDENT OF THE COURT

24 April 2008 ( )

(Application for interim measures – Conservation of wild birds – Directive 79/409/EEC – Spring hunting – Prohibition – Derogations from the system of protection – Condition that there be no ‘other satisfactory solution’ – Urgency)

In Case C-76/08 R,

APPLICATION for interim measures under Article 243 EC, made on 21 February 2008,

Commission of the European Communities, represented by D. Recchia and D. Lawunmi, acting as Agents, with an address for service in Luxembourg,

applicant,

v

Republic of Malta, represented by S. Camilleri, acting as Agent,

defendant,

THE PRESIDENT OF THE COURT,

after hearing the Advocate General, M. Poiares Maduro,

makes the following

Order

1 By its application, the Commission of the European Communities requests the Court to order the Republic of Malta to refrain from adopting any measures to apply the derogation in Article 9 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1), as amended by Council Directive 2006/105/EC of 20 November 2006 adapting Directives 73/239/EEC, 74/557/EEC and 2002/83/EC in the field of environment, by reason of the accession of Bulgaria and Romania (OJ 2006 L 363, p. 368) (‘Directive 79/409’), for the hunting of quails (Coturnix coturnix) and turtle doves (Streptopelia turtur) on spring migration.

2 The Commission also requested, in accordance with Article 84(2) of the Rules of Procedure, the provisional grant of the application even before the observations of the opposing party had been submitted.

3 Those requests were made in the context of infringement proceedings under Article 226 EC brought by the Commission on 21 February 2008, in which it seeks a declaration that, by failing to meet the conditions set out in Article 9 of Directive 79/409, the Republic of Malta has failed to fulfil its obligations under Article 7 of that directive for the hunting of quails and turtle doves on spring migration.

Procedure before the Court

4 Having being invited to submit its observations on the application for interim measures and to inform the Court whether it had already adopted or had the intention of adopting measures permitting spring hunting of the quail and the turtle dove for the current year, on 7 March 2008 the Republic of Malta, when submitting its observations, indicated to the Court that no measure had yet been adopted to allow such hunting for 2008.

5 The Maltese authorities also informed the Court that any ministerial decision permitting spring hunting of those two species for 2008 could be taken only after submission of a recommendation by a national committee (the Ornis Committee), the recommendation having to be submitted at least four weeks before the date envisaged by the committee for the start of the hunting season. Although the committee had met a number of times for this purpose, it had not yet submitted a recommendation.

6 The parties presented oral argument on 2 April 2008. At that hearing the Commission specified that its application for interim measures relates to 2008 and 2009.

7 By letter of 11 April 2008, the Maltese authorities confirmed that no ministerial decision permitting spring hunting of the quail and the turtle dove for 2008 would be taken before the Court had given its decision in these proceedings for interim measures.

Legal context

8 Directive 79/409 is designed to ensure the protection, management and control of all species of birds naturally occurring in the wild in the European territory of the Member States to which the EC Treaty applies. For this purpose, it requires the Member States to establish a general system of protection which, in particular, prohibits the killing, capture or disturbance of birds referred to in Article 1 and the destruction of nests.

9 Article 7 of Directive 79/409 states:

‘1. 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. Member States shall ensure that the hunting of these species does not jeopardise conservation efforts in their distribution area.

2. The species referred to in Annex II/1 may be hunted in the geographical sea and land area where this Directive applies.

3. The species referred to in Annex II/2 may be hunted only in the Member States in respect of which they are indicated.

4. 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.’

10 Article 9 of Directive 79/409 provides:

‘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 re-population, of re-introduction 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.

3. Each year the Member States shall send a report to the Commission on the implementation of this Article.

4. On the basis of the information available to it, and in particular the information communicated to it pursuant to paragraph 3, the Commission shall at all times ensure that the consequences of these derogations are not incompatible with this Directive. It shall take appropriate steps to this end.’

11 Since the quail and the turtle dove appear in Annex II/2 to Directive 79/409, they may, as provided by Article 7(3) of that directive, be hunted only in the Member States in respect of which they are indicated. As they are indicated in the case of the Republic of Malta, those species may in principle be hunted on the territory of that Member State, provided that the requirements imposed by Directive 79/409 are met.

12 In that regard, it is not in dispute that the quail and the turtle dove are migratory species and that the spring hunting occurs during their return to their rearing grounds. In accordance with Article 7(4) of Directive 79/409, the spring hunting of those species on Maltese territory must therefore, if it is to be lawful, be by way of a derogation pursuant to Article 9 of the directive.

Admissibility

13 The Maltese Government calls the admissibility of the application for interim measures into question.

14 First, it contends that the application is inadmissible because it goes beyond the subject-matter of the main action brought under the second paragraph of Article 226 EC. In its submission, the fact that the Member States must, by virtue of Article 9(3) of Directive 79/409, send a report on the implementation of Article 9 of the directive to the Commission each year and that, by virtue of Article 9(4), the Commission is required to take account of the information in the report in order to determine whether the consequences of the derogations authorised are compatible with the directive implies that the Commission cannot declare those derogations to be incompatible with the directive without first having received the report relating to the year in question. For this reason, the subject-matter of the main action cannot go beyond those years for which the Republic of Malta has submitted its report, that is to say, 2004, 2005 and possibly 2006, and cannot therefore cover 2007, the report for which is not due until the end of 2008. That is all the more so as regards 2008, in respect of which not only the report cannot yet be lodged but also there has not even yet been a decision by the Maltese authorities to rely on the derogation.

15 In that regard, it need merely be stated that the application for interim measures, in that it relates to the next two spring hunting seasons for the quail and the turtle dove, does not go beyond the framework of the dispute as determined by the Commission’s main action, since that action concerns the very principle of such hunting. If the Maltese Government calls the admissibility of the main action into question, it is to be pointed out that in principle this issue should not, save in exceptional circumstances whose existence has not, however, been established in the present case, be examined in proceedings relating to an application for interim measures, so as not to prejudge the substance of the case (see, to this effect, the order in Case 376/87 R Distrivet v Council [1988] ECR 209, paragraph 21).

16 Next, the Maltese Government submits that the present application for interim measures is inadmissible inasmuch as it seeks in actual fact to anticipate the decision of the Court on the merits in the main action.

17 While it is true that the measures applied for must be provisional in the sense that they do not prejudge the points of law or fact in issue or neutralise in advance the effects of the decision subsequently to be given in the main action (order in Case C-393/96 P(R) Antonissen v Counciland Commission [1997] ECR I-441, paragraph 27), it is to be observed that, in the present case, the measures applied for do no more than guard against a deterioration in the conservation status of the quail and the turtle dove during two spring hunting seasons.

18 Finally, the Maltese Government asserts that, through the application for interim measures, the Commission seeks to usurp the powers conferred by law on the Maltese authorities by evaluating and deciding itself whether or not recourse to a derogation permitting spring hunting is in conformity with Directive 79/409. Such a course of action is all the more improper because, in the absence, on the date of the application for interim measures, of any decision of the Maltese authorities permitting spring hunting for 2008, there is no national measure capable of being suspended and therefore the application for interim measures is manifestly premature.

19 In that regard, it is to be pointed out that, under the system of legal remedies which is established by the Treaty, a party may not only request, in accordance with Article 242 EC, that application of the act contested in the main action be suspended but also rely on Article 243 EC in order to seek the grant of interim measures. Under the latter provision, the judge hearing an application for interim measures may in particular issue, on a provisional basis, appropriate directions to the other party (see, to this effect, the order in Case 118/83 R CMC and Others v Commission [1983] ECR 2583, paragraph 53).

20 It follows that the application for interim measures is admissible.

Substance

21 It is settled case-law that the judge hearing an application for interim measures may order interim relief only if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Where appropriate, the judge hearing such an application must also weigh up the interests involved (see, inter alia, the order in Case C‑404/04 P-R Technische Glaswerke Ilmenau v Commission [2005] ECR I‑3539, paragraph 10, and the case cited).

22 The conditions thus imposed are cumulative, so that an application for interim measures must be dismissed if one of them is not met (see, inter alia, Technische Glaswerke Ilmenau v Commission, paragraph 11, and the case cited).

Prima facie case

23 The Commission states that the Maltese authorities have adopted measures to apply the derogation provided for in Article 9(1) of Directive 79/409 in order to permit spring hunting of the quail and the turtle dove in 2004 to 2007 and that there is nothing to indicate that a measure of that type will not be adopted before long in respect of 2008.

24 The Commission submits that those measures fall outside the scope of the derogation in Article 9(1) of Directive 79/409 because the Maltese authorities have failed to show that there is no satisfactory solution other than spring hunting of the species concerned. The Commission indicated at the hearing that it was not pursuing the additional argument set out in its pleadings that those measures are not justified on any of the grounds set out in Article 9(1)(a) to (c) of the directive.

25 According to the Maltese Government, while hunting of the species concerned is possible in autumn, the birds would nevertheless appear not to be present then in sufficient numbers.

26 In support of its line of argument, it also states that in 2006 only 11% of the turtle doves (namely 4 142 birds out of a total of 37 347) and 24.6% of the quails (namely 4 937 birds out of a total of 20 052) were taken in the autumn.

27 The Maltese Government adds that in 2005, when there were 12 059 licensed hunters, 15 239 quails were taken in the spring, representing 1.3 quails per hunter, as against only 5 109 in the autumn, representing 0.42 quails per hunter. As regards turtle doves, 31 493 were taken in the spring, representing 2.6 turtle doves per hunter, as against only 4 990 in the autumn, representing 0.41 turtle doves per hunter.

28 The Court has held that the fact that hunting conditions during the autumn and winter are less favourable than at other times of the year is irrelevant having regard to the protective legal framework established by Directive 79/409 (see Case C-507/04 Commission v Austria [2007] ECR I-5939, paragraph 203).

29 In the present case, it is common ground that hunting of the species concerned is possible in autumn, even though the number of birds taken is lower then. Furthermore, the Maltese Government did not explain clearly, either in its written observations or at the hearing, why and with regard to what needs the numbers taken during autumn hunting had to be considered insufficient. It should, moreover, be pointed out that the objective of Directive 79/409 is not to guarantee hunting communities a minimum number of birds to be taken per hunter.

30 Accordingly, it cannot be ruled out from the outset that the main action is well founded even though, on the other hand, the arguments relied upon by the Republic of Malta in defending itself cannot be disregarded.

Urgency

31 As regards the condition relating to urgency, it is to be remembered that the purpose of the procedure for interim relief is to guarantee the full effectiveness of the definitive future decision, in order to ensure that there is no lacuna in the legal protection provided by the Court. For the purpose of attaining that objective, urgency must be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable damage to the party seeking the interim relief (order in Case C-7/04 P(R) Commission v Akzo and Akcros [2004] ECR I‑8739, paragraph 36, and the case cited).

32 It is for the party claiming such damage to establish its existence. While it is not necessary for it to be absolutely certain that the damage will occur, a sufficient degree of probability being enough, the applicant is none the less required to prove the facts which are considered to found the prospect of such damage (see the order in Case C-156/03 P-R Commission v Laboratoires Servier [2003] ECR I‑6575, paragraph 36).

33 The Commission, invoking damage to the common heritage of the Member States that would result if Malta again permitted spring hunting of the quail and the turtle dove, contends that continuance of the practice of systematically granting a derogation permitting hunting during the spring migration would have a devastating impact on the population of those species, which in any event do not have a favourable conservation status. It observes that spring hunting affects mature adults in particular, that is to say, those of the birds that are necessary to procreate in order to maintain the species. At the hearing, it stated that the fact that spring hunting will result in the death of certain number of those birds is sufficient in itself to establish irreparable damage.

34 The Maltese Government submits that the Commission’s assertions remain vague and general. The Commission does not provide actual justification to back up its contentions and gets lost in contradictions. Thus, in its application for interim measures it observes at footnote 5 that it ‘is difficult to demonstrate that hunting [the species concerned] in Malta itself is having a devastating impact on these bird populations in Europe’, a statement which is in complete contradiction to the devastating impact of hunting on those species that it constantly raises in the same application. According to the Maltese Government, in the absence of a devastating impact of that kind, serious and irreparable damage cannot be considered to be established.

35 In this regard, it must be stated, first of all, that the effect of applying the criterion as to urgency adopted by the Commission at the hearing would be that, in practice, urgency would always be considered to be established. On the other hand, on the basis of the criterion argued for by the Maltese Government, it would be necessary to demonstrate that spring hunting for 2008 and/or 2009 would in itself have a devastating impact on the species concerned, which appears very difficult, if not in practice impossible.

36 The interim relief procedure is not designed to establish the truth of complex and much debated facts. The judge hearing an application for interim measures does not have the means necessary in order to carry out such examinations and in numerous instances he would be able to manage to do so in sufficient time only with difficulty.

37 In addition, Community legislation on the conservation of wild birds must be interpreted in the light of the precautionary principle, which is one of the foundations of the high level of protection pursued by Community policy on the environment, in accordance with the first subparagraph of Article 174(2) EC (see, by analogy, inter alia Case C-127/02 Waddenvereniging and Vogelbeschermingsvereniging [2004] ECR I‑7405, paragraph 44).

38 Therefore, when assessing urgency, it should be recalled, first of all, that the protection of birds covered by Directive 79/409 is regarded as being a matter where management of the common heritage is entrusted to the Member States in relation to their respective territories (see Case C-60/05 WWF Italia and Others [2006] ECR I‑5083, paragraph 24). As the Court has held, any hunting activity is liable to disturb wild fauna and it may in many cases affect the conservation status of the species concerned, irrespective of the extent to which it depletes numbers. The regular elimination of individual animals keeps the hunted populations in a permanent state of alert which has harmful consequences for numerous aspects of their living conditions (Case C-435/92 Association pour la protection des animaux sauvages and Others [1994] ECR I‑67, paragraph 16, and order of the President of the Court of 19 December 2006 in Case C‑503/06 R Commission v Italy, paragraph 17, not published in the ECR).

39 Next, as is stated in the abovementioned footnote in the Commission’s application for interim measures and has not been contested by the Maltese Government, ‘the two species are considered to be in an unfavourable conservation status (cf. Birds in Europe, BirdLife Conservation Series No 12, BirdLife International, which mentions that the turtle dove is in moderate continuing decline in Europe and quail has a large historic decline in Europe)’.

40 Finally, the question of urgency cannot be separated from the present case’s broader context, which is marked by the fact that the Commission complains in the main action about the very principle of spring hunting of the quail and the turtle dove in Malta, whereas the Maltese Government considers that such hunting is consistent with the requirements of Directive 79/409 and that it is open to it to permit such hunting in the future too.

41 Account should therefore be taken of the cumulative effect of spring hunting of the quail and the turtle dove in recent years in order to assess whether the continuance of such hunting in 2008 and 2009 warrants grant of the interim measures applied for.

42 Moreover, the national Ornis Committee, which has the task of submitting a recommendation to the Maltese Government following which the latter may take a decision permitting spring hunting of those species, is already dealing with the matter and has decided, according to the explanation given by the Maltese Government, to suspend deliberation pending a decision by the Court.

43 On the basis of the foregoing, it is apparent that the Commission’s application for interim measures cannot be dismissed for lack of urgency so far as concerns the current year. With regard to 2009, on the other hand, urgency is not made out in the present application for interim measures.

Balance of interests

44 It remains to be determined whether the balance of interests favours one or other of the parties with regard to the interim relief requested for 2008.

45 The Commission submits that the interest in protecting the common heritage of the Community outweighs the possible adverse effects, for the Maltese authorities or any third parties, such as the hunting fraternity in Malta, of the interim relief applied for.

46 The Maltese Government contends that its interests in the main action would be definitively and irrevocably prejudiced if the relief requested were granted, a situation which is all the more serious in light of the absence of serious and irreparable damage.

47 As regards any repercussions of the application for interim measures on the main action, reference should be made to paragraph 17 of the present order. As to the remainder, it appears that a comparison should be made of, on the one hand, the interest relied upon by the Commission consisting in observance of Directive 79/409 and, on the other, the interest of the Republic of Malta consisting in being able, if it so wishes, to permit spring hunting of the quail and the turtle dove.

48 While, on the basis of the case-law cited earlier, the interest, founded on ecological justifications, in protecting the common heritage of the Community is considerable in itself, the interest of hunters does not appear to have a value superior thereto. According to the information available in these proceedings for interim measures, any prohibition of spring hunting of the quail and the turtle dove in 2008 would, moreover, not run up against either acquired rights of hunters or even, in the light of the background to these proceedings, a legitimate expectation on their part of engaging, in the spring of 2008, in an activity which falls more within leisure pursuits than within any other type of occupation.

49 Accordingly, it appears necessary to order the Republic of Malta to refrain from adopting any measures applying the derogation in Article 9 of Directive 79/409 for the hunting of quails and turtle doves on the 2008 spring migration.

On those grounds, the President of the Court hereby orders:

1. The Republic of Malta shall refrain from adopting any measures applying the derogation in Article 9 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds – as amended by Council Directive 2006/105/EC of 20 November 2006 adapting Directives 73/239/EEC, 74/557/EEC and 2002/83/EC in the field of environment, by reason of the accession of Bulgaria and Romania – for the hunting of quails (Coturnix coturnix) and turtle doves (Streptopelia turtur) on the 2008 spring migration.

2. The application for interim measures is dismissed as to the remainder.

3. Costs are reserved.

[Signatures]