Opinion of Mr Advocate General Van Gerven delivered on 16 January 1990. - Commission of the European Communities v Kingdom of the Netherlands. - Failure to comply with a directive - Conservation of wild birds. - Case C-339/87.



European Court reports 1990 Page I-00851



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

Background

1 . In this case the Commission asks the Court to declare that by failing to bring into force within the prescribed period the laws, regulations and administrative provisions necessary to comply with the provisions of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds ( 1 ) ( hereinafter referred to as "the Directive "), the Kingdom of the Netherlands has failed to fulfil its obligations under the EEC Treaty .

2 . Under Article 18 of the Directive the Member States were required to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive within two years of its notification . Notification took place on 6 April 1979 . The period for transposition therefore expired on 6 April 1981 .

3 . The Court has already delivered judgment in five sets of infringement proceedings brought by the Commission for non-compliance with Directive 79/409 . ( 2 ) One of these judgments, namely the judgment of 13 October 1987 in Case 236/85, itself concerned infringement proceedings brought against the Netherlands . In that judgment the Court held that certain provisions of the Vogelwet ( Law on birds ), and the decrees issued in implementation thereof, did not comply with the Directive .

The present case concerns a number of provisions of the Jachtwet ( 3 ) ( hereinafter referred to as the "Hunting Law ") and a decree of 8 August 1977 opening and closing the hunting season made by the Minister for Agriculture and Fisheries in pursuance of Article 20 of the Hunting Law . ( 4 ) A regulation of 24 February 1987 made by the same Minister on the granting of permits for the hunting of birds is also relevant to this case although it was issued after the Commission' s reasoned opinion of 11 February 1987 . ( 5 )

4 . The Netherlands Government attached to its rejoinder two draft regulations, the first amending the regulation of 24 February 1987 made by the Minister for Agriculture and Fisheries, the second amending the decree of 8 August 1977 made by the same Minister . The Netherlands Government' s resolve to meet a large number of the Commission' s complaints is clear from the two draft regulations . It should be pointed out, however, that on the day of the hearing those draft regulations had not yet entered into force . Furthermore, the Netherlands Government has stated that it is prepared to carry out the proposed amendments, although it does not see the necessity of doing so . It consequently maintains its position that the Commission' s complaints are not well founded . In these circumstances, I consider that no arguments may be derived from the existence of the aforementioned draft regulations in order either to support the Commission' s complaints or to contradict them .

5 . The provisions of the Directive which the Commission alleges have not been transposed into the Netherlands legal order are for the most part prohibitions . The case also involves Article 9 of the Directive which permits derogations from those prohibitions subject to strict conditions .

I would further observe that the Commission does not in fact allege that the current Netherlands legislation is being applied in a manner which is incompatible with the Directive . The allegations which it makes principally concern a number of provisions laid down by, or pursuant to, the Hunting Law, which are considered by the Commission to be in conflict with the Directive by virtue of the fact that it is possible for them to be applied in a manner which is at variance with the Directive .

6 . On examining the submissions and arguments of the Commission and the Netherlands Government, I find that the differences of opinion centre on three questions . The first difference of opinion is whether a prohibition imposed by the Directive must be transposed into the domestic legal order where the Member State claims that the prohibited practice is unknown in its territory . The second difference of opinion is whether a prohibition imposed by the Directive must be transposed in the Hunting Law itself, or whether transposition in a ministerial regulation adopted on the basis of the Hunting Law is sufficient . The third difference of opinion, finally, concerns the derogations from a prohibition imposed by the Directive . Where the Directive makes the possibility of derogations subject to strict conditions, is it sufficient for the authorities to take these conditions into account de facto, or is it necessary for these conditions to be transposed in a generally binding and published regulation?

I shall examine these three questions in the light of the Court' s case-law . The results of my examination will then enable me to take a view on each of the complaints made by the Commission .

7 . I refer to the Report for the Hearing for details of the relevant provisions of the Directive, the Netherlands legislation, the background to the case, the course of the proceedings and the submissions and arguments of the parties . These items in the file will be referred to hereinafter only in so far as that is necessary for the reasoning of the Court .

The Court' s case-law

8 . Under the terms of the third paragraph of Article 189 of the EEC Treaty a directive is binding, as to the result to be achieved, upon each Member State to which it is addressed, but it leaves to the national authorities the choice of form and methods . In the Royer judgment of 8 April 1976, ( 6 ) the Court held that the freedom left to the Member States by Article 189 as to the choice of forms and methods of implementation does not affect their obligation to choose the most appropriate forms and methods to ensure the effectiveness of directives . The Court has progressively developed criteria which have enabled a more precise definition to be given of the expression "appropriate forms and methods", as laid down in the abovementioned judgment . Accordingly, the Court' s settled case-law is that

"mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations under the Treaty ". ( 7 )

9 . It is also well settled in the Court' s case-law that Article 189 does not necessarily require the provisions of a directive to be incorporated in a specific express legislative enactment . Thus the Court has consistently held that

"the transposition of Community legislation into national law does not necessarily require the relevant provisions to be enacted in precisely the same words in a specific express legal provision; a general legal context may be sufficient if it actually ensures the full application of the directive in a sufficiently clear and precise manner ". ( 8 )

Each time that the transposition of the Directive relating to the conservation of wild birds has been before the Court, the Court has added this further consideration :

"However, a faithful transposition becomes 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 ". ( 9 )

10 . In a further development the Court has laid down strict requirements for the form and methods to be chosen by the Member States for the transposition of the directive in question . Thus, in its abovementioned judgment of 8 July 1987 in Commission v Belgium ( paragraph 16 ), the Court held that a provision of the Belgian law on hunting which did not exclude the possibility that species of birds other than those listed in Annex II to the Directive might be hunted, created a legally ambiguous situation . In its judgment of the same date in Commission v Italy ( paragraph 39 ), the Court further held that, since the Italian law did not itself lay down the criteria and conditions provided for in Article 9(2 ) of the Directive for derogations therefrom and did not require the regions to take account of those criteria and conditions, it introduced an element of uncertainty as regards the obligations which the regions had to observe when adopting their regulations .

The fact that a practice prohibited by a directive does not take place does not constitute an adequate defence

11 . The Netherlands Government defends itself against various allegations made by the Commission to the effect that a number of prohibitions laid down by the Directive have not been transposed into the national legal order by putting forward the argument that the prohibited practices are unknown in the Netherlands .

Such a defence can be taken into account only if the Netherlands Government can prove that the practice prohibited by the Directive cannot in any event occur in Netherlands territory, which it cannot do merely by referring to the present factual situation, because that can always change . In order to provide for such changes in the factual situation, it is necessary, in accordance with the Court' s abovementioned case-law, for a specific legal framework to be in place by means of which the full application of the Directive can be secured in all circumstances .

Law or ministerial regulation?

12 . A number of the Commission' s complaints concern provisions of the Hunting Law which in principle permit the hunting, or some forms of hunting, of protected species of birds . The exercise of this general hunting right is, or may be, limited by other provisions laid down by, or pursuant to, the Hunting Law . In its written pleadings the Commission argues that the relevant provisions of the Hunting Law are themselves contrary to the Directive in so far as they leave open the possibility of regulations or applications which are in conflict with the Directive . At the hearing the Commission' s representative did, however, adopt a less categorical position ( see paragraph 20 below ).

13 . In order to examine whether a directive has been transposed, the legal order of the Member State must be considered as a whole . A legislative provision must therefore be assessed in conjunction with the implementing provisions which are actually adopted on the basis thereof . Where a legislative provision in principle permits the hunting of certain wild species unless a regulation to the contrary is issued by the competent Minister, and there is such a regulation to the contrary which effectually prohibits the hunting of wild birds, then I do not see how this conflicts with the Directive, provided that the regulation in question is contained in a generally binding and published instrument from which individuals may derive rights and/or which may impose obligations on them . I infer this condition from the abovementioned case-law of the Court, from which it appears that a mere administrative practice, on account of the fact that it may be altered at will by the authorities and lacks publicity, cannot constitute a correct transposition of a directive . Such transposition does not comply with the requirements of legal certainty, since it does not ensure consistency, publicity and reviewability for the Community rule .

14 . The decree ( Beschikking ) of 8 August 1977 and the regulation ( Regeling ) of 24 February 1987, both issued by the Minister for Agriculture and Fisheries, in my view satisfy the condition set out above .

No importance need be attached to the terminological difference between the two instruments . It appears that in the Netherlands generally binding ministerial regulations used to be designated by the term "Beschikking ". Nowadays this term is in principle reserved for non-rule-making decisions, and regulations of general application are usually designated by the terms "verordening" or "regeling ".

Both the decree of 8 August 1977 and the regulation of 24 February 1987 are based on a legislative power conferred on the competent Minister by Article 20 of the Hunting Law . This seems to me to be an important factor which distinguishes the two instruments from a mere administrative rule ( or "pseudo-legislation "). ( 10 ) Both instruments, moreover, contain generally binding rules which can be relied on against and also by individuals . An appeal to the administrative court will lie against individual authorizations given by the Minister which do not comply with the instruments . Finally both instruments, as is customary in the Netherlands for instruments of this kind, were published in the Staatscourant ( Dutch official gazette ).

15 . Admittedly it appears from the documents before the Court that the President of the Litigation Section of the Council of State, in a decision of 16 April 1987 on an application for the suspension of individual permits issued on the basis of the regulation of 24 February 1987, expressed doubts as to whether that regulation can in fact have as its legal basis the second paragraph of Article 20 of the Hunting Law . He added, however, that he did not consider those doubts to be significant enough in order to suspend the contested permits on that account alone .

It seems to me that, so long as the Council of State has made no definitive pronouncement on whether there is an adequate legal basis for the regulation of 24 February 1987 - it was confirmed at the hearing that no such pronouncement has yet been made - the Court must work on the assumption that this regulation is binding . Accordingly, as things stand I see no reason to alter the opinion which I have expressed in paragraph 14 .

The manner of making derogations must be laid down in generally binding, published rules

16 . A number of the Commission' s complaints relate to provisions of the Hunting Law which empower the authorities to grant derogations from prohibitions laid down in the Directive, without ensuring that the requirements of Article 9 of the Directive are complied with . The Netherlands Government replies on this point that in fact no derogations are granted unless the requirements of Article 9 of the Directive are complied with .

17 . There is a danger that the protective provisions laid down by the Directive on the conservation of wild birds might be undermined through Member States' adopting too broadly based a policy with regard to derogations . In its previous judgments relating to the Directive on the conservation of wild birds the Court clearly recognized this danger . In its judgment of 8 July 1987 in Commission v Italy ( paragraphs 38 and 39 ), details were given of the criteria which must be satisfied by a derogation made on the basis of Article 9 of the Directive . Derogations must be applied under strictly supervised conditions and on a selective basis so that the hunting of protected species of birds is limited to the strict minimum . In its judgment of 8 July 1987 in Commission v Belgium ( paragraph 34 ), the Court further held that national rules which did not indicate the reasons mentioned in Article 9(1 ) of the Directive for which a derogation might be granted, the circumstances of time and place in which derogations might be granted and the controls to be carried out, exceeded the limits set by Article 9 of the Directive on the ground that they were too general in nature .

18 . In my view this case-law clearly shows that it is not open to the Netherlands Government to rely on the argument that its derogations comply de facto with the conditions laid down in Article 9 of the Directive . As a result of the aforementioned requirement of legal certainty, and the concomitant requirements of consistency, publicity and reviewability, those conditions must be reproduced with sufficient precision in generally binding and published rules, so that derogations granted contrary thereto may be identified and, if necessary, declared void . In my opinion, however, these conditions do not need to be contained in the Hunting Law itself . Generally binding and published rules such as the aforementioned regulation of 24 February 1987 are sufficient, provided that they make the grant of authorization subject to conditions which fully and accurately reflect the conditions set out in Article 9 of the Directive .

19 . In the light of the foregoing considerations I shall now examine whether the Commission' s allegations are well founded . For the sake of brevity, for the expression "generally binding and published rules" I shall use the term "rule-making provisions ".

First complaint : list of birds which may be hunted

20 . The Commission takes the view that three provisions of the Hunting Law ( Articles 2 and 20(1 ) and ( 2 ) ), together with the decree of 8 August 1977, made by the Minister for Agriculture and Fisheries, conflict with the provisions of the Directive as regards the birds which may be hunted . As I have indicated above, the Commission' s representative modified this allegation at the hearing . In particular he conceded that the Commission would have difficulty in maintaining its allegation that Articles 2 and 20 of the Hunting Law conflict with the provisions of the Directive, should the draft regulations mentioned above enter into force . This concession is closely related to the point of view that I have expressed, at paragraph 13 above, namely that the Hunting Law itself need not necessarily be amended, provided that the provisions of the Directive are transposed by means of other rule-making provisions adopted on the basis of the Hunting Law . I shall hereafter elaborate this point of view in respect of each of the three relevant provisions of the Hunting Law .

Article 2 of the Hunting Law

21 . This article lists the animal species which, for the purposes of the Hunting Law, are to be regarded as "game ". This list includes amongst others, the following species of birds living in the wild which are not mentioned in Annex II to the Directive ( 11 ) and which, therefore, under Article 5(a ) of the Directive may not be hunted, save under the conditions laid down in Article 9 of the Directive : great snipe, ( 12 ) carrion and hooded crows, rooks, jackdaws, jays and magpies . Black grouse also come within this list . This species of wild bird is mentioned in Annex II/2 of the Directive, but with an indication that the Netherlands is one of the Member States in which, under Article 7(3 ) of the Directive, authorization to hunt this species may in principle not be given . Finally, Article 2 of the Hunting Law refers to all species of geese and ducks, although only certain species mentioned in Annex II to the Directive may be hunted .

22 . In its written pleadings the Commission infers from the fact that under Article 2 of the Hunting Law species of birds which are not listed in Annex II to the Directive are regarded as "game" that those species may in principle be hunted . It is of the opinion that this situation is identical to the one which the Court ruled against in its judgment of 8 July 1987 in Commission v Belgium . ( 13 )

23 . I agree with the Netherlands Government that this complaint is unfounded . The provision in question defines what is to be understood as "game" for the purposes of a law which is intended to govern not only the hunting of game but also the conservation of wildlife and the restoration of damage caused by game . Regard being had to the matters covered by the Hunting Law it cannot in my opinion be inferred purely and simply from the fact that certain species of birds are regarded as "game" that they may in principle be hunted . Besides, the situation is different from that in the abovementioned Commission v Belgium case . In that case discussion centred on a provision which merely enumerated animal species which could be hunted . In the present case, it is, as has been seen, a matter of determining the sphere of application of a law whose purview is wider than merely hunting .

Article 20(1 ) of the Hunting Law and the decree of 8 August 1977

24 . Under Article 20(1 ) of the Hunting Law, the hunting of game listed in Article 8(1 ) - in addition to rabbits, foxes and feral cats, the following species of birds are included : wood pigeons, carrion crows, jackdaws, jays and magpies - is permitted the whole year round, unless otherwise determined by the competent Minister . On the basis of this provision, the Minister for Agriculture and Fisheries adopted the decree of 8 August 1977 . It is provided therein that the jay may be hunted from 15 July to 30 April in the following year, from which it follows that it may not be hunted from 1 May to 14 July .

25 . The Commission claims in its written pleadings that Article 20(1 ) of the Hunting Law conflicts in two respects with the Directive . That provision permits carrion crows, jackdaws, jays and magpies to be hunted although they are species of birds which are not mentioned in Annex II to the Directive and therefore, in principle, may not be hunted . Wood pigeons are mentioned in Annex II but, pursuant to Article 7(4 ) of the Directive, they may in principle not be hunted during the rearing season or during the various stages of reproduction . The Commission further takes the view that the decree of 8 August 1977 conflicts with the Directive as it permits jays to be hunted during one period of the year .

26 . For the reasons I have already stated, I take the view that the question whether the provisions of the Directive have been transposed into the Netherlands legal order must be evaluated on the basis of both the Hunting Law and the rule-making provisions adopted thereunder . I therefore do not share the view that Article 20(1 ) of the Hunting Law is in conflict with the Directive simply on account of the fact that this provision in principle permits a number of protected species of birds to be hunted . However, I do find that, when this provision is read in conjunction with the decree of 8 August 1977, a number of provisions of the Directive have not been transposed into the Netherlands legal order . Thus, as currently provided for, carrion crows, jackdaws and magpies may be hunted throughout the year and jays for part of the year . This state of affairs conflicts with the Directive, which permits birds not mentioned in Annex II to the Directive to be hunted only under the conditions laid down in Article 9 of the Directive . I further find that, under the current rules, the wood pigeon may be hunted throughout the whole of the year, whereas Article 7(4 ) of the Directive prohibits this species of bird from being hunted during a certain period of the year, save under the conditions laid down in Article 9 of the Directive . ( 14 )

27 . The Netherlands Government states that the current rules are justified in order to prevent serious damage to agriculture and to protect flora and fauna . It points out that Article 9(1 ) of the Directive permits Member States to grant derogations from the prohibition on hunting on these grounds . According to the Netherlands Government, the Minister for Agriculture and Fisheries may avail himself of the possibility of adopting divergent rules afforded to him by Article 20(1 ) of the Hunting Law whenever special circumstances do not necessitate the protection of crops, flora and fauna .

28 . I agree with the Commission that the Netherlands Government is thereby distorting matters . It is turning a general prohibition on hunting for the sake of the protection of birds and subject to derogations in the interests of agriculture, flora and fauna, into a general authorization to hunt for the sake of the protection of agriculture, flora and fauna and subject to derogations in the interests of the conservation of birds . Moreover, I have already pointed out, at paragraph 18 above, that the strict conditions laid down in Article 9 of the Directive, pursuant to which Member States may permit derogations from the prohibitions, must be incorporated in the national legal order in the form of precise rule-making provisions . This is not so in the case of either Article 20(1 ) of the Hunting Law or the decree of 8 August 1977, which are indeed binding, published instruments but, owing to their generality, cannot form the basis for granting derogations in compliance with Article 9 of the Directive . ( 15 )

Article 20(2 ) of the Hunting Law and the regulation of 24 February 1987

29 . Under Article 20(2 ) of the Hunting Law, the competent Minister, after obtaining the views of the committee on hunting, is to determine to what extent game other than that mentioned in Article 8(1 ) may be hunted . On the basis of this provision the Minister for Agriculture and Fisheries issued the regulation of 24 February 1987 relating to the grant of licences to hunt birds . Article 2 of this regulation provides that the Minister may grant a permit to hunt one or more of the species of birds listed in the annex . This annex mentions the pink-footed goose, the barnacle goose, the brent goose and the rook . Articles 3 to 5 of this regulation lay down the conditions under which the permit may be granted . These conditions are based on the conditions laid down in Article 9 of the Directive for the grant of a derogation from the prohibition on hunting referred to in Article 5 of the Directive .

30 . The Commission claims in its written pleadings that Article 20(2 ) of the Hunting Law conflicts with the Directive on the ground that this provision makes it possible for hunting to be permitted in the case of certain species of birds which do not appear in Annex II to the Directive ( for example the black grouse, the great snipe, the hooded crow ) otherwise than in compliance with the requirements of Article 9 of the Directive . It further takes the view that the regulation of 24 February 1987 meets this objection only in part, that is to say merely as regards the species of birds mentioned in the annex to this regulation, but not as regards the species mentioned by way of example above .

31 . For its part the Netherlands Government points out that, pursuant to Article 20(2 ) of the Hunting Law, the hunting of species of birds other than those mentioned in Article 8(1 ) is not permitted unless otherwise provided . The black grouse, the great snipe and the hooded crow are not mentioned in the annex to the regulation of 24 February 1987 . Consequently, the hunting of these species of birds is not permitted at any time during the year . Moreover, permits to hunt these species of birds are not granted .

32 . For the reasons which I set out in paragraph 13 above, I am of the opinion that Article 20(2 ) of the Hunting Law does not conflict with the Directive merely by reason of the fact that, on the basis of this provision, the hunting of protected species of birds may be permitted by ministerial regulation . In my view the provision in question must be evaluated in conjunction with the regulation adopted on the basis thereof . In that connection I observe that the competent Minister has not availed himself of the possibility afforded by Article 20(2 ) of the Hunting Law to permit the hunting in general of species of birds which are not mentioned in Annex II to the Directive . On this point I consider that the Netherlands legislation does not conflict with the Directive .

I also find, however, that the competent Minister considers that Article 20(2 ) of the Hunting Law gives him the power to grant specific derogations from provisions laid down by, or pursuant to, the Hunting Law . ( 16 ) The regulation of 24 February 1987 adopted on the basis of this provision is in fact a regulation conferring authorization . It only applies, however, to the species of birds mentioned in the annex thereto .

Whereas it must be assumed, until further notice, that the Minister has the aforementioned power ( see paragraph 15 above ), and that therefore Article 20 of the Hunting Law empowers him to grant derogations from the prohibitions laid down in the Directive, it must at the same time be ascertained that this power is exercised, not merely with regard to the species of birds mentioned in the annex to the regulation of 24 February 1987 but also with regard to all the species of birds protected by the Directive, only under the conditions laid down in Article 9 of the Directive . The Netherlands Government claims that this is the case . In particular it states that in actual fact no permits are granted to hunt species of birds which are not mentioned in the annex to the regulation of 24 February 1987 . But, as I have already stated, at paragraph 18, reference to the existence of a policy is not sufficient . The conditions laid down in Article 9 of the Directive for the grant of derogations or the decision not to grant derogations must be contained in rule-making provisions . ( 17 )

Second complaint : derogations relating to certain species of birds

33 . The Commission takes the view that three provisions of the Hunting Law ( Articles 8, 12 and 22 ) contain derogations with regard to certain species of birds conflicting with the Directive .

Articles 8 and 12 of the Hunting Law

34 . Under Article 8(1 ) of the Hunting Law, the user of land has the right to hunt not only rabbits, foxes and feral cats on the land used by him, but also the following species of birds : wood pigeons, carrion crows, jackdaws, jays and magpies . Pursuant to Article 8(3 ) of the Hunting Law the user of land may permit third parties to hunt on the land used by him . Under the terms of Article 12(2)(a ) of the Hunting Law, the abovementioned species of birds may be hunted without a permit, unless a firearm is used .

35 . The Commission is of the opinion that these provisions conflict with the Directive inasmuch as they confer on the user of the land the right to hunt, or to allow the hunting of, species of birds which are not mentioned in Annex II to the Directive, without complying with the requirements of Article 9 of the Directive .

36 . The rights of which the land user may avail himself on the basis of the provisions in question may only be exercised if the competent Minister has not prohibited the hunting of the species of birds mentioned in Article 8, as he has the power to do under Article 20(1 ) of the Hunting Law . I have already established, at paragraph 26 above, that the Minister has not, or has not entirely, prohibited the hunting of carrion crow, jackdaws, magpies and jays . On those grounds I consider that the current arrangements do conflict with the Directive . But in my view the Commission goes too far when it alleges that Articles 8 and 12 of the Hunting Law in themselves conflict with the directive . Should other rule-making provisions adopted pursuant to the Hunting Law curtail the general right to hunt enjoyed by the land user as regards the protected species of birds I fail to see that such an arrangement, albeit cumbersome from a legislative point of view, would run counter to the Directive .

Article 22 of the Hunting Law

37 . Under Article 22(2 ) of the Hunting Law, bird traps may be used for hunting the game mentioned in Article 8(1 ). The Commission takes the view that this provision conflicts with Article 8(1 ) of the Directive which imposes on Member States the obligation to prohibit the use of the means of hunting listed in particular in Annex IV at ( a ). Traps are expressly mentioned in this annex . For its part the Netherlands Government claims that wild birds are not hunted with traps in the Netherlands .

38 . The Netherlands Government does not demonstrate that hunting with bird traps cannot take place in the Netherlands . As I have already made clear at paragraph 11, this defence submission can in the circumstances not succeed . The prohibition of the use of bird traps must therefore be contained in a rule-making provision . ( 18 )

Third complaint : searching for, taking and having possession of eggs of certain species of birds

39 . Under the terms of Article 10(2)(b ) of the Hunting Law, searching for, taking and having possession of eggs of the game mentioned in Article 8(1 ) is permitted, provided that hunting of that game is permitted . The Commission takes the view that this provision conflicts with Article 5(c ) of the Directive, pursuant to which Member States are under a duty to prohibit the taking in the wild or the keeping of eggs of birds which are not mentioned in Annex II to the Directive, subject to any derogation in accordance with Article 9 . The Netherlands Government argues that these acts do not in practice occur . It also points out that Article 10 of the Hunting Law authorizes these acts only in so far as hunting is permitted .

40 . The defence submission that, in the Netherlands, eggs of the protected species of birds are not taken cannot succeed, as the Netherlands Government has not shown that this cannot occur on its territory . The general prohibition imposed by the Directive in this regard must be contained in a rule-making provision . To this end, Article 10(2 ) of the Hunting Law need not necessarily be amended . So long as this provision can be read in conjunction with a rule-making provision of the Hunting Law or its implementing regulations which prohibits searching for, taking and possession of eggs, there would in my opinion be no conflict with the Directive . However, such a prohibition is not imposed by the current regulatory arrangements . The prohibited acts are allowed in so far as hunting is permitted and, as I have already pointed out at paragraph 26, the hunting of species of birds mentioned in Article 8 of the law is in principle permitted by the current arrangements .

Fourth complaint : derogations for the prevention of damage

41 . Under the terms of Article 53(1 ) of the Hunting Law, the competent Minister may, in order to prevent and combat damage, issue permits to hunt particular species of birds, in derogation from the terms of the Hunting Law or provisions adopted pursuant thereto . Under Article 54(1 ) of the Hunting Law, the competent Minister may on certain grounds determine that, in order to prevent or combat damage, the number of feral animals is to be limited by way of derogation from the terms of the Hunting Law or provisions adopted pursuant thereto .

The Commission is of the opinion that in this way the competent Minister can grant derogations from the provisions of the Directive without having to take into consideration the conditions set out in Article 9 of that instrument .

For its part the Netherlands Government points out that permits are no longer granted under Article 53 of the law for the hunting of species of birds which are not mentioned in Annex II to the Directive . As far as permits issued under Article 54 are concerned, the Netherlands Government makes clear that they are in general only granted in respect of pigeons and non-indigenous feral animals, and that the permits are, moreover, made subject to strict conditions, with the result that the system satisfies the conditions laid down in Article 9 of the Directive .

42 . The Netherlands Government' s defence comes down to this : on the basis of the provisions in question, the Minister does not in actual fact issue any permits to hunt species of birds protected by the Directive . As I have already shown, at paragraph 18 above, this is not sufficient . The conditions laid down in Article 9 of the Directive governing the grant of derogations, or a decision not to grant derogations, must be contained in rule-making provisions .

Fifth complaint : hunting from aircraft

43 . The Commission finds that the Hunting Law does not prohibit hunting from aircraft . It considers this to be an insufficient transposition of the Directive . Under the terms of Article 8(2 ) of the Directive, Member States are in particular to prohibit any form of hunting which uses the modes of transport mentioned in Annex IV(b ). Aircraft are expressly mentioned therein . The Netherlands Government argues that in the Netherlands aircraft are not used to hunt game .

44 . As I have already shown, at paragraph 11 above, that argument cannot succeed if it is not proven that it is not possible to hunt with aircraft in the Netherlands . The prohibition must consequently be contained in a rule-making provision . ( 19 )

Sixth complaint : derogations for competitions for hunting dogs

45 . Under Article 27 of the Hunting Law, the competent Minister may, inter alia for the purpose of holding competitions for hunting dogs or for the training of such dogs, grant a permit for the matters mentioned therein by way of derogation from the Hunting Law . The Commission takes the view that this provision conflicts with the Directive because it affords to the competent Minister the possibility of granting hunting permits in a manner which does not ensure that the requirements of Article 9 of the Directive are complied with . The Netherlands Government states that when permits for training hunting dogs are granted, no animals which may not at that time be hunted may be captured or killed . As to the grant of permits to hold competitions with hunting dogs in no event may game be captured or killed on such occasions .

46 . The Netherlands Government' s defence comes down to this : the provisions of the Directive are not infringed in the case of competitions with hunting dogs or the training of such animals, because the competent Minister in actual fact makes the decisions to grant the relevant permits subject to conditions which ensure this . As I have already demonstrated, at paragraph 18 above, this is not sufficient . These conditions to which the issue of permits is subject must be laid down in rule-making provisions .

Conclusion

47 . In sum, I propose that the Court should :

( 1)declare that, by failing to adopt within the prescribed period all the provisions necessary in order to ensure that the Hunting Law, or the provisions adopted pursuant thereto, comply with Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, the Kingdom of the Netherlands has failed to fulfil its obligations;

( 2)order the Kingdom of the Netherlands to pay the costs .

(*) Original language : Dutch .

( 1 ) OJ 1979, L 103, p . 1 .

( 2 ) Judgments of 8 July 1987 in Case 247/85 Commission v Belgium (( 1987 )) ECR 3029, of 8 July 1987 in Case 262/85 Commission v Italy (( 1987 )) ECR 3073, of 17 September 1987 in Case 412/85 Commission v Germany (( 1987 )) ECR 3503, of 13 October 1987 in Case 236/85 Commission v Netherlands (( 1987 )) ECR 3989 and of 27 April 1988 in Case 252/85 Commission v France (( 1988 )) ECR 2243 .

( 3 ) Law of 3 November 1954 ( Staatsblad 523 ) laying down provisions relating to hunting, as most recently amended by the Law of 7 July 1988 ( Staatsblad 462 ).

( 4 ) Decree No J 2228 ( Staatscourant 153 ) as most recently amended by a decree of 9 October 1987 ( Staatscourant 195 ) on the opening and closing of the hunting season .

( 5 ) Regulation No J 1434 ( Staatscourant 40 ).

( 6 ) Judgment of 8 April 1976 in Case 48/75 Royer (( 1976 )) ECR 497 .

( 7 ) Judgment of 15 October 1986 in Case 168/85 Commission v Italy (( 1986 )) ECR 2945, paragraph 13 . See also the judgments of 23 February 1988 in Case 429/85 Commission v Italy (( 1988 )) ECR 843, paragraph 12, and of 3 March 1988 in Case 116/86 Commission v Italy (( 1988 )) ECR 1323, paragraph 15 .

( 8 ) Judgment of 27 April 1988 in Case 252/85 Commission v France (( 1988 )) ECR 2243, paragraph 5 . See also judgment of 23 May 1985 in Case 29/84 Commission v Germany (( 1985 )) ECR 1661, paragraph 23 .

( 9 ) See, inter alia, the continuation of paragraph 5 of the abovementioned Commission v France judgment of 27 April 1988 .

( 10 ) In the Netherlands it appears that pseudo-legislation is to be distinguished from normal legislation in so far as it is not based on a rule-making power conferred by a formal legislative enactment . See B . Hessel : Rechtsstaat en economische politiek, 1987, pp . 214 et seq . See also C . W . van der Pot : Handboek van het Nederlandse Staatsrecht, edited by A . M . Donner, 1983, pp . 451 et seq .

( 11 ) Annex II to the Directive lists the species of birds which may be hunted under the conditions laid down in Article 7 of the Directive .

( 12 ) This species of bird also appears in Annex I to the Directive and its habitat must therefore be the subject of special conservation measures, in accordance with Article 4 of the Directive .

( 13 ) In paragraphs 15 and 16 of the judgment in Case 247/85, cited above, the Court held as follows :

"In Article 1 bis of the law species of birds not listed in Annex II to the directive are classfied as 'game' so that in principle they may be hunted . Even if those species may in fact be hunted only if the competent authorities lay down each year, for each species and for a defined area, the opening and closing dates of the hunting season, the competent authorities still have the power to authorize the commencement of hunting of species which are not mentioned in Annex II to the directive but which are listed in Article 1 bis ( b ), ( c ) and ( d ) of the law .

In those circumstances, it is impossible to accept the argument of the Belgian Government which maintains in essence that the intended result of the directive has been attained . Article 1 bis ( b ), ( c ) and ( d ) of the law creates a legally ambiguous situation by not excluding the possibility that species other than those listed in Annex II to the directive may be hunted in Belgium . The orders mentioned by the Commission also demonstrate that the practical application of the contested provision does not comply with the requirements of Article 7 of the directive ."

( 14 ) In the draft regulation amending the decree of 8 August 1977 ( Article 3 ) it is provided that carrion crow, jackdaw, jay and magpie are not permitted to be hunted and that the wood pigeon may not be hunted from 1 May to 15 June .

( 15 ) In the draft regulation amending the decree of 8 August 1977 more details are given of the conditions under which the Minister for Agriculture and Fisheries may grant exemptions from the hunting prohibition in the case of the carrion crow, jackdaw, jay, magpie and wood pigeon ( Articles 4 to 6 ). These conditions are clearly based on the conditions laid down in Article 9 of the Directive .

( 16 ) As has already been mentioned ( at paragraph 15 ) it appears from the documents before the Court that the Council of State appeared to have doubts as to whether the regulation of 24 February 1987 had its legal basis in Article 20(2 ) of the Hunting Law .

( 17 ) The draft regulation amending the regulation of 24 February 1987 extends the annex appended to this regulation by including "all other species of birds with the exception of the species mentioned in the decree of 8 August 1977 made by the Minister for Agriculture and Fisheries ".

( 18 ) The draft regulation amending the decree of 8 August 1977 ( Article 4 ) provides that bird traps may not be used where a licence to hunt protected species of birds is granted .

( 19 ) In the draft regulation amending the decree of 8 August 1977 ( Article 4 ) hunting from aircraft is prohibited whenever a permit is granted to hunt protected species of birds .