OPINION OF ADVOCATE GENERAL

FENNELLY

delivered on 26 October 1995 ( *1 )

I — Introduction

1. The present request for a preliminary ruling raises a number of novel issues regarding the interpretation of the wild birds directive (hereinafter ‘the Directive’). ( 1 ) In particular, it poses the question of whether the protection of the Directive extends to subspecies of birds which are not to be found in the wild state in the European territory of the Member States, where the subspecies in question is difficult or impossible to distinguish from other subspecies of the same species, and where other subspecies are protected under the Directive. The order for reference also raises the question of whether a Member State may impede the importation into its territory of specimens of birds in commerce in accordance with the laws of another Member State.

II — Facts and procedure in the main proceedings

2. According to the order for reference, Mr Van der Feesten was found to be in possession of a number of specimens of Carduelis carduelis caniceps or grey-headed gold finch, a bird protected under the Dutch Vogelwet (Law on [the protection of] birds) of 31 December 1936. It appears that the particular specimens were purchased in Denmark, and imported into the Netherlands. The national court states that, unlike the main species Carduelis carduelis or black-headed (‘European’) goldfinch, the greyheaded goldfinch does not occur naturally in the wild in the territory of the Member States.

3. Mr Van der Feesten contested the seizure of the specimens in accordance with Article 552a of the Dutch Wetboek van Strafvordering (code of criminal procedure). Following a judgment of the Hoge Raad (Supreme Court) of the Netherlands, the Gerechtshof (Regional Court of Appeal),'s-Hertogenbosch has referred the following three questions to the Court: ‘1. Is national legislation which protects birds (within the meaning of Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, as subsequently amended on a number of occasions) belonging, according to the evidence, to a subspecies which, as such, does not at all occur naturally in the wild in the European territory of the Member States compatible with the wording and/or the objectives of Directive 79/409, and in particular with Articles 1(1) and 14 thereof, if only because the (main) species and/or other subspecies do occur naturally in the wild in that territory or in the territory of the Member State in question? 2. Does it make any difference to the answer to Question 1 that the competent authorities of the Member States in question may determine that, for the prosecuting authorities which have the requisite degree of expertise, the subspecies in issue cannot or can scarcely be distinguished from birds of the (main) species, of other subspecies of the main species, or of other (subspecies? 3. If it should be decided that the measure in issue is a stricter measure within the meaning of Article 14 of Directive 79/409, does it then make any difference that the birds of the subspecies found in the Member State in question were imported from another Member State which could have introduced the same stricter measure, but which, in this case, had not (yet) adopted any such measure at the time of the material events?’

III — The legislative background

(a) The Vogelwet

4. Article 1(2) of the Vogelwet of 1936 defines ‘protected birds’ as meaning ‘all birds which belong to one of the species of birds occurring in the wild state in Europe’. In accordance with Article 7, ‘[it] shall be prohibited to keep, offer to purchase, purchase, offer for sale, sell, deliver, transport, offer to transport, import, transit or export protected birds’, while Article 28 makes infringements of this prohibition punishable.

b) Council Directive 79/409/EEC

5. The Directive takes as its starting point, according to the second recital in the preamble, the decline in the population of ‘a large number of species of wild birds naturally occurring in the European territory of the Member States’; ( 2 ) this decline ‘represents a serious threat to the conservation of the natural environment, particularly because of the biological balances threatened thereby’. Effective bird protection is seen as ‘typically a trans-frontier environment problem entailing common responsibilities’, particularly as regards migratory species which ‘constitute a common heritage’ (preamble, third recital). The objective of such conservation is stated to be ‘the long-term protection and management of natural resources as an integral part of the heritage of the peoples of Europe’ and ‘the maintenance and adjustment of the natural balances between species as far as is reasonably possible’ (preamble, eighth recital).

6. The scope of the Directive is described in Article 1(1): ‘This Directive relates to the conservation of all species of naturally occurring birds in the wild state in the European territory of the Member States to which the Treaty applies. It covers the protection, management and control of these species and lays down rules for their exploitation.’ The Directive does not list those species of wild birds which benefit from its provisions, but extends its protection to ‘all species of naturally occurring birds in the wild state’ in Europe, subject to certain exceptions (see Articles 6(2) to (4), 7 and 9). The species of birds thus protected I will describe as ‘protected species’; ( 3 ) the exact scope of that phrase is of course the main subject-matter of the present proceedings.

7. The Directive imposes a number of general obligations regarding the maintenance of population levels of protected species, and the preservation, maintenance and reestablishment of their habitats (Articles 2 and 3). Later provisions contain more specific obligations relating to the protection of endangered and migratory species listed in Annex I (Article 4) and the protection of wild birds and their eggs in general, including a prohibition on the marketing of wild birds and restrictions on hunting birds of protected species (Articles 5 to 8).

8. In particular, Article 5 obliges the Member States to ‘take the requisite measures to establish a general system of protection for all species of birds referred to in Article 1, prohibiting in particular ... [the] keeping of birds of species the hunting and capture of which is prohibited’ (Article 5(e)). Article 6 prohibits the sale, transport for sale, keeping for sale and the offering for sale of live or dead birds or recognizable parts thereof, subject to certain exceptions. Article 11 of the Directive requires the Member States to ‘see that any introduction of species which do not occur naturally in the wild state in the European territory of the Member States does not prejudice the local flora and fauna’ and to consult the Commission in this connection, while Article 13 provides that measures taken on foot of the Directive may not ‘lead to the deterioration in the present situation as regards the conservation of species of birds’ within its scope. Article 14 stands alone and provides that ‘Member States may introduce stricter protective measures than those provided for under this Directive’; none of the recitals casts any light on the purpose or scope of this article.

IV — Observations submitted to the Court

9. In accordance with Article 20 of the Statute of the Court, the Dutch and French Governments and the Commission submitted observations both in writing and orally, while the Openbaar Ministerie (Public Prosecutor's Office) submitted written observations only, and the plaintiff in the main proceedings submitted oral observations only. These may be summarized as follows.

(a) On the first question — the application of the Directive to non-European subspecies of protected species

10. The plaintiff in the main proceedings argues for a distinction between subspecies depending on whether or not they occur in the wild state in Europe. Article 1 of the Directive begins with the object of preserving species of birds living freely in the wild state. The question of whether the scope of the Directive is strictly defined by reference to species or subspecies is of little real importance. He claims that the Commission has produced no evidence that subspecies are in every case protected by the Directive; he also claims that the Commission has never intervened in the internal market for birds of non-European subspecies.

11. In the view of the Openbaar Ministerie, Article 36 of the Treaty, which refers to the protection of the health and life of animals, allows the Netherlands to impose import restrictions in the interests of the protection of wild birds. Both the Vogelwet and the Directive should be interpreted to mean that the term ‘species’ includes the subspecies, and that in the context of the protection of birds, it is sufficient that the species live in Europe. It would, in its view, be biologically impossible to protect a species if the relevant rules did not also cover the subspecies.

12. The Dutch Government notes that the Vogelwet does not specify the concept of ‘species’ used in Article 1, and that the term should therefore be given its current meaning. In taxonomy, which the government defines as the scientific study of classification and systematics, the notion of ‘species’ covers all subspecies and variations, and geographically distinguishable populations of the species. A specimen of the subspecies therefore necessarily belongs to the species. As the Directive employs the concept of bird species, the protection it ensures also extends to subspecies of the species; the Member States are therefore obliged to prohibit trade in, and the keeping of, species occurring naturally in the wild in the Member States, and subspecies of these species. The fact that the subspecies in question does not occur in Europe does not, in its view, affect its protection under the Directive.

13. On this basis, the Dutch Government submits that the Vogelwet is compatible with the letter and the spirit of the Directive, and particularly with Article 1(1). As it belongs to the species Carduelis carduelis, which occurs naturally in the wild state in Europe, the subspecies Carduelis carduelis caniceps comes within the protective regime of the Directive. A similar legal situation exists in the Flemish region of Belgium and in the Federal Republic of Germany.

14. In the alternative, the Dutch Government argues that if the Directive does not require a prohibition on trade in non-European subspecies, such a prohibition is at least in conformity with its letter and spirit. Only thus can the objective of conserving all species of birds living naturally in the wild in Europe be attained; it is important that subspecies of protected species be neither imported nor the object of commercial transactions. As the differences between subspecies and the main species or other subspecies are often slight, crossbreeding can occur, giving rise to hybrids which can jeopardize the conservation of the species living in the wild. The absence of a ban on trade in non-European subspecies, where the principal species occurs in the wild in Europe, would undermine the effectiveness of the Directive. Under this view, the first question must therefore be answered in the affirmative.

15. The French Government observes that both the Directive and the habitats directive of 21 May 1992 ( 4 ) rely on the concept of ‘species’, used in its taxonomie sense. The principal characteristic of a species is that its members have acquired a set of stable features, which are part of the genetic heritage of individual specimens and which are passed on from generation to generation. In the vast majority of cases, the offspring of the fertilization of a member of one species by a member of another species will not be fenile; this is crucial to the possibility of distinguishing between species. By contrast, the delimitation between subspecies of the same species is not based on such clear and objective genetic distinctions, as, unlike species, subspecies are fertile inter se, and may only be distinguished by their external characteristics, their habitat or their behaviour. The distinction between subspecies is thus a matter for scientific debate. The government concludes that the Directive covers all the subspecies of a species which come within the scope of the Directive, even where birds of a given subspecies do not occur naturally in the wild in Europe.

16. The French Government concedes that in some cases Annex I to the Directive only mentions a particular subspecies of certain species, such as the Phalacrocorax carbo sinensis, the continental subspecies of the cormorant. In its view, only this particular subspecies requires special conservation measures concerning its habitat in accordance with Article 4(1) of the Directive; the scope of Article 4 is much more limited than that of Article 1, which extends to all species of wild birds occurring naturally in Europe. Furthermore, the reference to this subspecies indicates the existence of a consensus amongst the scientific community that the continental subspecies of the cormorant displays sufficient specific characteristics to be easily identified and isolated, a consensus which is reflected in the text of the Directive itself. On the other hand, the French Government continues, it is not open to individual Member States to decide autonomously which subspecies they wish to exclude from the protection guaranteed under the Directive. Such action would undermine the uniform application of an essential provision of the Directive, which would thus be dependent on various, and possibly conflicting, scientific opinions.

17. The Commission, taking the second question as essentially part of the first, supports the arguments of the three parties just quoted. It agrees, in particular, that the Council made a deliberate choice of the word, species, to delineate the scope of the Directive. It does not suggest that there is any independent evidence to cast light on the state of mind of the Council, but seeks to deduce it from three principal supporting arguments. In the first place, the references in certain cases in the annexes to a subspecies of particular species demonstrate that the Council was conscious of the ornithological and taxonomic significance of the word, species, in using it in Article 1. Secondly, the great difficulty of establishing clear distinctions between subspecies argues, in the interests of effective control, for the protection of all subspecies. Thirdly, it states that the importation of subspecies presents a danger of hybridization through the crossbreeding of couples of different subspecies. In this connection, the Commission stated at the oral hearing that 800000 singing birds are imported annually into Belgium, of which 40000 are Carduelis carduelis caniceps, and that this could lead to artificial modification of the avifauna of Europe. However, through an expert it was made clear that, since members of different subspecies of a species are fertile inter se, no question of hybridization arises — that would presuppose interbreeding between species. Rather, the Commission expressed its fears of what it called genetic pollution. It argued that this fear finds recognition in Article 11 of the Directive, though that provision is concerned with the introduction of new species.

(b) On the second question — the difficulty of distinguishing one subspecies from other subspecies

18. In the view of the Openbaar Ministerie, the national authorities are entided under Community rules to fix the boundary lines between protected and non-protected birds, in the interests of combating the ‘falsification’ of fauna. The Dutch Government submits that the fact that it is practically impossible to distinguish between birds of a subspecies and those of the main species, or between different subspecies of the same principal species, supports an affirmative answer to the first question, and that hence the Court should answer the second question in the negative. The French Government also proposes a negative answer, adding that the risk of confusion between subspecies demonstrates the impossibility of basing any transposition of the Directive on the notion of subspecies. These two submissions, therefore, presume that it is always difficult or impossible to distinguish between subspecies. The Commission agrees but regards the question as inseparable from the first.

(c) On the third question — the importation of specimens of exotic subspecies from another Member State

19. According to the Openbaar Ministerie, if the Member States were unable to maintain their supplementary rules in accordance with Article 36 of the Treaty, such national restrictions could only operate if all the other Member States adopted similar rules, which would be contrary to the objectives of Article 36.

20. The Dutch and French Governments submit that the protection of the subspecies in question is not a stricter measure within the meaning of Article 14 of the Directive, and that there is no need to answer this question. The Commission also adopts this position, adding that an individual in the position of Mr Van der Feesten cannot rely upon the failure of another Member State to transpose the Directive properly. ( 5 )

V — Examination of the questions submitted to the Court

21. A preliminary comment should be made on the plaintiff's contention at the oral hearing that the birds the seizure of which had given rise to these proceedings not only lived in captivity, but were incapable of living in the wild. Both the identification of the birds in question and their particular characteristics are matters of fact which must be decided by the national judge. The possible application of the Directive to wild birds which are born and raised in captivity was one of the main issues in Case C-149/94 Vergy, in which my Opinion is to be delivered today. If the decision of the Court in that case is relevant to the facts, it is for the national judge to apply it. However, no question on that issue has been referred by the national court in the present case.

(a) On the first question — the scope of Article 1 of the Directive

22. The first question, upon which the second and third questions are dependent, raises the compatibility with the Directive of national legislation which protects birds which do not occur naturally in Europe where they belong to an exotic or non-European subspecies of a protected species. It has long been established that the Court does not have jurisdiction in a preliminary ruling procedure under Article 177 of the Treaty to rule on the compatibility of national legislation with Community law; however, it may, and in the present circumstances should, ‘extract from the wording of the questions formulated by the national court, in the light of the information provided by that court, the aspects relating to the interpretation of Community law in order to enable it to resolve the legal problem with which it is confronted’. ( 6 ) The national court is, quite correctly, not asking this Court to rule on the validity of the particular national law, which remains a matter for it. It is seeking guidance only on the interpretation of Community law.

23. The principal question which arises in the present case is one which has not previously been decided in the Court's abundant case-law on the wild birds directive, ( 7 ) and is not an easy one. Are non-European subspecies of a European species covered by the Directive? If these subspecies are not covered per se by the Directive, the second question which arises is whether the protection of such non-European subspecies is compatible with the Directive, or otherwise with Community law.

24. In avian taxonomy, it is customary to distinguish between species which show geographical variation to such an extent that two or more subspecies are recognized (polytypic species) and those in which no subspecies are recognized (monotypie). ( 8 ) All members of a polytypic species are ipso facto members of a subspecies; the protection of the species is effected through measures which protect some or all of the subspecies. The concept, ‘subspecies’, is authoritatively ( 9 ) described by Cramp and Simmons as denoting ‘groups of similar populations, belonging to a single species, inhabiting a geographic subdivision of the species range, and recognizably differing from other populations of the same species’. ( 10 ) In this regard, the term ‘main species’ used by the order for reference could lead to confusion; in ornithological terms, the European goldfinch is no more ‘main’ than the grey-headed goldfinch. It is however the ‘nominate’ subspecies, as it has the same name as the species itself; according to Cramp and Simmons, the nominate subspecies ‘is not necessarily the most “typical”, central or most widespread subspecies, but merely the first one named’. ( 11 )

25. The species Carduelis carduelis or goldfinch is a polytypic species, of which some 24 subspecies have been identified; the species in turn belongs to the family Carduelidae (which counts about 112 species in total), the suborder passeres (songbirds) and the order passeriformes (passerines or perching birds) which, with 5100 species, is the dominant avian group on Earth today. ( 12 ) The species Carduelis carduelis is divided into two groups, the carduelis group, being subspecies mainly found in (geographical) Europe, and the caniceps group which is mainly found in central Asia. The order for reference describes the European goldfinch as Carduelis carduelis, rather than Carduelis carduelis carduelis; for the avoidance of doubt, the black-headed (‘European’) goldfinch is more correctly known as Carduelis carduelis carduelis, being, like Carduelis carduelis caniceps, a subspecies of the species Carduelis carduelis. It is common ground that the European goldfinch benefits in principle from the protection of the Directive.

26. As we have seen from its language, the Directive does not distinguish between ‘species’ and subspecies, and is silent as to whether or not the term ‘species’ necessarily includes all of the subspecies of protected species. This is in marked contrast, for example, with the Convention on International Trade in Endangered Species of Wild Fauna and Flora signed in Washington on 3 March 1973 (the ‘Washington Convention’), Article 1(a) of which provides that ‘“species” means any species, subspecies, or geographically separate population thereof’. ( 13 ) It also contrasts with the Vogelwet, Article 1 of which protects ‘all birds which belong to one of the species of birds occurring in the wild state in Europe’ (emphasis added), which on its face includes specimens of non-European subspecies of European wild bird species.

27. In my view, it is necessary to look beyond a narrow or literal meaning of the word, ‘species’. It cannot be interpreted without regard to its ornithological context; where it refers to a monotypie species, it necessarily denotes the species without more, whereas, when used in reference to polytypic species, it may refer either to all or to only some of the subspecies of the species. In the absence of any express indication in the preamble or the substantive provisions of the Directive, the reference to ‘species’ in Article 1 of the Directive could conceivably be interpreted in one of three ways: — the term ‘species’ covers all subspecies of protected species without qualification (as proposed by the Dutch and French Governments, the Openbaar Ministerie and the Commission); — the term ‘species’ covers only those subspecies (of protected species) which occur in the wild on the European territory of the Member States; ( 14 ) — the term ‘species’ covers subspecies of protected species, in so far as this is necessary to attain the objectives of the Directive. In many cases, for example, where all the subspecies of a particular species occur in the wild in Europe, there will be no practical difference between these possible interpretations. The difference between the first interpretation, on the one hand, and the second and third interpretations, on the other, may however be significant, as in the circumstances of the present case.

28. If the Openbaar Ministerie, the Dutch and French Governments and the Commission are correct in their submissions on this point, then Article 1 must be interpreted as applying to ‘all species of naturally occurring birds in the wild state in the European territory of the Member States to which the Treaty applies, and all subspecies of such species wherever they occur’. The question which arises is whether such an extensive interpretation of this article — which is the basis for criminal charges under the relevant national laws of the referring Member State — is required by the Directive itself, and, if not, whether it is in conformity therewith. In concreto, how would the confiscation of Mr Van der Feesten's grey-headed (non-European) goldfinches contribute to the protection of the black-headed European goldfinch, or otherwise contribute to the achievement of the objectives of the Directive?

29. I will now seek to classify the arguments in favour of extending protection to non-European subspecies and will express my own opinion, which is, in the event, contrary to the majority view.

(i) The choice of the term ‘species’ in Article 1 was deliberate and hence extends the protection of the Directive to all subspecies of species occurring naturally in the wild state in Europe

30. The Directive nowhere explicitly extends its protection to all subspecies of every protected species. Indeed, it never uses the term subspecies at all, either in any of its substantive provisions or in any of the annexes.

31. The suggestion of some of those who have made observations, notably the Commission, that the Directive draws a distinction between species, mentioned in its main provisions, and subspecies, based on some parts of the annexes, is, in my view, fallacious. It appears to flow from the fact that some of the types of bird — I will not beg the question by talking of species — are described by the name of a subspecies only. This furnishes no support for the claimed distinction, since the provisions of the Directive referring to the same annexes refrain from using the latter term. In my view the contrary argument is at least as sustainable. Article 4 enjoins ‘special conservation measures’ for ‘the species mentioned in Annex I’. That annex includes, at item 5, Phahcrocorax carbo sinensis, which is a subspecies of cormorant. Article 7 permits hunting under national legislation of ‘the species listed in Annex II’, which includes at item 13, Lagopus hgopus scoticus et hibemicus, or red grouse, a subspecies. Thus, in each case the Directive uses the term species to describe a subspecies. The French Government's contention, quoted at paragraph 16 above, is not to the point. It does not explain the use of the two terms interchangeably. Furthermore, subsequent amendments to the annexes to the Directive identify a large number of protected subspecies; according to a consolidated version of the Directive published by the Commission in 1992, 19 subspecies are listed in Annex I, 2 in Annex III/2 and 1 each in Annexes II/l and III/l. ( 15 )

32. Although the misdescription of a number of subspecies as species might possibly have been the result of a drafting oversight in the original text of the Directive, it does at least cast doubt on the notion of a careful and deliberate choice of terms by the Council and causes us to look for guidance elsewhere than in the single word species. I believe that guidance can be found in the use of the expression, ‘naturally occurring in the European territory of the Member States’ following ‘species of wild bird’ in the second, third and sixth recitals in the preamble to the Directive. The same territorial limitation is to be found in Article 1, which delineates the scope of the Directive as relating to ‘the conservation of all species of naturally occurring birds in the wild state in the European territory of the Member States’. That such protection is limited to the ‘European territory of the Member States’, ( 16 ) seems to me to be a more obvious and deliberate policy choice than that suggested by the parties which have submitted written observations, viz., that ‘species’ necessarily includes non-European subspecies of protected species.

33. I conclude from the text of the Directive that the term ‘species’, even if deliberately chosen, cannot be interpreted in each and every circumstance as necessarily including every subspecies of the species protected under the Directive. This term must in my view be interpreted in accordance with the context of each provision where it is used. As noted above, monotypie bird species are not divided into subspecies, and therefore a reference to the subspecies of such species would be meaningless. It appears from the Directive that the term ‘species’ could have been used in Article 1 to refer to species of monotypie wild birds, and to all or only to some of the subspecies of polytypic birds species. The reference to ‘species’ in Article 1 does not therefore appear to be decisive of the scope of protection intended by the Directive, and in particular of the geographical extent of the protection it seeks, which is in effect the main question at issue.

34. The geographical limitation on the protection of the Directive I have suggested above is consistent with the Council declaration of 22 November 1973 on the programme of action of the European Communities on the environment, cited in the first recital in the preamble to the Directive; the declaration describes the capture and killing of migratory birds and songbirds as ‘a serious threat to the ecological balance in Europe’. ( 17 ) The Economie and Social Committee viewed the proposal on which the Directive was based as ‘a most successful measure for ... the conservation of the common heritage of the birds of Europe’ designed ‘to protect wild birds in the EEC countries’, and opined that ‘the Directive should make it clear that it excluded exotic species imported by man from elsewhere’; ( 18 ) given its unambiguous stance on the scope of the Directive, I have no doubt that the Committee intended the exclusion of exotic subspecies of both European and non-European wild birds species. A similar view of the scope of Article 1 of the Directive informs the opinion of the European Parliament, which noted that the Directive was ‘aimed at counteracting the imminent extinction or large-scale destruction of many bird species in Europe’; as it considered that the Directive did not cover birds outside Europe, Parliament called upon the Commission to initiate negotiations with third countries ‘to promote bird protection ... on a worldwide basis’. ( 19 )

35. The Directive contrasts with certain other instruments of Community law on the protection of flora and fauna. Regulation 3626/82 ( 20 ) for example, seeks to implement within the Community the Washington Convention on endangered species; the Convention covers ‘all species threatened with extinction which are or may be affected by trade’, and species which may become so, without regard to their geographical location, including all subspecies and geographically separate populations of such species. ( 21 ) A similar approach was adopted by the Bonn Convention on the conservation of migratory species of wild animals, Article I of which defines ‘migratory species’ as ‘the entire population or any geographically separate pan of the population of any species or lower taxon of wild animals’; this Convention was approved on behalf of the Community in accordance with Council Decision 82/461/EEC. ( 22 ) If the term ‘species’ were, as has been claimed, universally acknowledged to include all subspecies of a particular species, such definitions would be unnecessary.

36. Further support for this view is provided by various statements of the Commission, and the Court's case-law. Thus, in the introduction to its second report on the application of the Directive, the Commission notes ‘the various threats European birds are faced with’ and the need ‘to tighten and extend controls to safeguard wild birds occurring in Europe’. ( 23 ) In its first decision on the Directive, the Court held that ‘protective effect of the directive ... covers species of naturally occurring birds in the wild state in the European territory’ of the Member States. ( 24 ) Equally, in finding in Van den Burg that ‘[the] directive has regulated exhaustively the Member States' powers with regard to the conservation of wild birds’, the Court can only, in my view, have intended European birds, as the Directive does not provide for the conservation of non-European birds. ( 25 )

37. In conclusion, I can find no support in the text of the Directive, in the record of the legislative procedure leading to its adoption, in the reports on its application and in the relevant case-law concerning its interpretation for the view that Article 1 was intended necessarily to cover non-European subspecies of protected species.

(ii) It would be ‘biologically impossible’ to protect the species if the relevant rules did not cover the subspecies, given the difficulty of distinguishing between subspecies

38. This point was much pressed both in the written submissions and at the oral hearing, though at the hearing the Dutch Government stressed the practical difficulties of differentiating between subspecies rather than the biological impossibility of so doing. ( 26 ) Counsel for Mr Van der Feesten dismissed this argument as unrealistic, on the grounds that the competent authorities in the Member States concerned had more than enough professional experience in the matter of differentiating between subspecies. Neither of the ornithological experts who gave evidence confirmed the ‘biological impossibility’ argument. The French Government's expert testified that the introduction of subspecies was unexceptionable where the subspecies was perfectly identifiable, and where the international scientific community was completely in agreement on the distinction between it and other subspecies; this presupposes that it is possible to distinguish between subspecies.

39. None of the parties who supported this argument thought fit to explain to the Court how, if it is biologically or practically impossible to distinguish between Carduelis carduelis carduelis and Carduelis carduelis caniceps, the plaintiff in the main proceedings could have been charged with possessing specimens of the latter. If the two subspecies at issue were indistinguishable from each other, it is difficult to see how any question would have arisen for consideration by this Court.

40. Furthermore, it appears from the observations of both the Dutch and French Governments that the principal characteristic of a subspecies is that it is geographically distinct and biologically distinguishable from other subspecies of the same species. This view accords with the generally accepted definition of ‘subspecies’ as recognizably differing from other populations of the same species cited above. ( 27 )

41. This argument is also inconsistent with other relevant measures and proposed measures of Community law. In order properly to implement Regulation 3626/82, for example, the Member State authorities are required to be able to identify, and apply the provisions of the regulation to, the numerous subspecies of birds protected under the Washington Convention and listed as such in the appendices to the convention. A similar approach was adopted in the Commission's proposal for a regulation laying down provisions with regard to possession of and trade in specimens of species of wild fauna andflora of 18 November 1991, ( 28 ) which singles out certain subspecies for different treatment from the rest of the species. Thus, for example, the Anas aucklandia nešiotis would be classified in Annex A of the regulation, while the Anas aucklandia aucklandia and Anas aucklandia chlorous would come under Annex B, and would therefore be subject to less stringent import conditions. If it were impossible to distinguish between subspecies of birds, as has been affirmed, such provisions would have no sense.

42. For such an argument, founded on the biological or practical impossibility of distinguishing between subspecies, to justify an extended definition of the scope of the Directive beyond what I have concluded to be its intended scope, the parties would have had to show in effect that it is never, or almost never, possible to distinguish between subspecies. The evidence does not justify such an interpretation. Indeed, the differences which evolve over ‘geological time’ between subspecies classified as belonging to the same species may be so striking as to require the reclassification of a subspecies as a new species. ( 29 ) This is not to say that the classification of wild birds into subspecies may never cause difficulties in practice, but rather that such difficulties do not justify ignoring recognized differences in interpreting Article 1 of the Directive; the possible significance of these difficulties is dealt with below in answering the second question of the national court.

(iii) In taxonomy, the species necessarily covers the subspecies

43. This affirmation is clearly correct; it is equally clearly not determinative of the interpretation of the term ‘species’ in Article 1 of the Directive. The question at issue is whether the protection of one subspecies found in Europe under a measure of Community law requires (or permits) repressive measures against those found in possession of specimens of a non-European subspecies of the same species. Avian taxonomy recognizes the difference between subspecies, including that between the subspecies at issue; no convincing reasons have been advanced to demonstrate that the Directive must ignore such differences.

44. The agent of the Dutch Government argued at the oral hearing for an extensive, ‘taxonomic’ interpretation of the scope of the Directive citing in particular points 14 and 15 of the Opinion of Advocate General Van Gerven in APAS v Préfets de Maine-et-Loire et de la Loire-Atlantique. ( 30 ) This argument does not appear to me to be pertinent. In interpreting the provisions at issue in this case, the Advocate General relied on the ‘objective and general structure’ of the Directive, as I have done; nowhere in his Opinion does he intimate that the Directive applies to subspecies of protected species which do not occur naturally or usually in Europe.

(iv) The wider scope of protection under the Directive is justified by the necessity to protect against changes in natural avifauna, called ‘genetic pollution’

45. The Commission argues on this basis that the Directive necessarily protects all subspecies of a protected species, while the Dutch Government proposes it as support for its alternative submission that the extensive protection is at least compatible with, if not imposed by, the Directive; this latter argument is considered below. The natural avifauna in question can only be European avifauna, as the Member States are not, except as regards the activities of certain Member States in their non-European territories, in a position to protect against changes in non-European avifauna. This argument is necessarily an alternative to the Commission's primary contention that Article 1 includes non-European subspecies of protected species. If they are already included, no argument based on necessity arises.

46. The analogy the Commission seeks to draw with Article 11 of the Directive, which provides that ‘Member States shall see that any introduction of species of birds which do not occur naturally in the wild state in the European territory of the Member States does not prejudice the local flora and fauna’, is not however convincing. This provision illustrates the distinction inherent in the Directive between local flora and fauna, which it seeks to protect, and exotic flora and fauna, which it does not; it is common ground that Carduelis carduelis caniceps is not local fauna. If the term ‘species’ were to be interpreted in accordance with the purpose of this provision, as I have suggested, Carduelis carduelis caniceps would come within Article 11 as a ‘species of bird which does not occur naturally in the wild state in the European territory of the Member States’. This would accord to the term species, in this context, the same flexible approach to definition as that implicitly adopted by the Council in drawing up the annexes.

47. The French Government has voiced some concern about the danger to the uniform application of the Directive if Member States were entitled to decide autonomously which subspecies they wished to exclude from its protection. The geographical criterion determining the scope of Article 1 — birds naturally occurring in the wild in Europe — which arises from an examination of the text and its stated objectives, and which is confirmed by its legislative history, is unambiguous and objective, and provides a uniform standard defining the scope of the Directive.

48. In the light of the foregoing, I am led to conclude that the term ‘species’ as used in Article 1 of the Directive does not include within its scope non-European subspecies of protected species, and the first question should be answered accordingly.

(b) On the second question — difficulties in distinguishing protected from non-protected subspecies of wild birds

49. The second question seeks to ascertain whether the Directive should be interpreted as requiring or allowing Member States to protect non-European subspecies of wild birds, in circumstances where the competent national authorities are unable, or scarcely able, to distinguish these from subspecies which are protected. In so far as it concerns the interpretation of the Directive, and any requirement that the Member States protect exotic subspecies, I have already answered this question in dealing with the argument that it is ‘biologically impossible’ to distinguish between subspecies of the same species.

50. There remains the question of whether the Directive would permit the Member States to extend to specimens of exotic subspecies the provisions which apply to protected birds, where the competent authorities of a Member State experience genuine difficulty in distinguishing between the two. This question has been referred to the Court in circumstances in which no doubt has been cast on the classification of the specimens the possession of which gave rise to the present proceedings. If the competent authorities have been able to determine to their own satisfaction the identity of the birds seized, no answer the Court could give on this question would respond to ‘a need that is inherent in the effective resolution’ of the dispute before the national court. ( 31 ) In such circumstances, the question is pro tanto hypothetical, and the Court does not, in my view, have jurisdiction to answer it.

51. Should the Court not follow this view, the question of the obligations which arise for a Member State the competent authorities of which are unable, in a particular case, to distinguish between protected and nonprotected specimens of a protected species would need to be considered. Given their position on the first question, the Dutch and French Governments, the Openbaar Ministerie and the Commission have not explicitly addressed this issue, while the plaintiff in the main proceedings was of the view that the question would not arise in practice.

52. The question of the identification of bird subspecies, or indeed species, is not dealt with in the Directive, which does not provide a procedure for the resolution of difficult cases; if the matter is as problematic for the competent national authorities as has been affirmed, I find it extraordinary that it was not raised in the first 13 years that the Directive was in operation. It is clear that Community law does not require the Member States to do the impossible, and the Court has recognized that the absolute impossibility of fulfilling an obligation under the Treaty may constitute a good defence to infringement proceedings. ( 32 ) In so far as the imposition of a prohibition on the import of specimens of non-European subspecies would contravene Article 30 of the Treaty, ( 33 ). the application of such a ban indifferently to protected and exotic specimens could only be justified in cases of genuine impossibility, and only until a satisfactory solution had been found at the Community level. It is established case-law that ‘practical difficulties which appear at the stage when a Community measure is put into effect cannot permit a Member State unilaterally to opt out of fulfilling its obligations. The Community institutional system provides the Member State concerned with the necessary means to ensure that its difficulties be given due consideration’; ( 34 ) this case-law is in my view applicable to the present circumstances.

(c) The third question: restrictions on the importation of specimens of exotic subspecies

53. In submitting the third question in the present case, the national judge has assumed that Article 14 could in principle be relied upon to justify a prohibition on the importation of specimens of exotic subspecies. As these specimens are not, in my view, within the scope of the Directive, it follows that Article 14 does not apply to such a prohibition. ( 35 )

54. Although it refers to the Directive as setting out the only relevant provisions of Community law, the third question, when read with the first question, raises the permissibility of rules which operate in practice as a prohibition on the importation of exotic specimens from one Member State to another, at a time when the purchase of the specimens in the exporting Member State was legal. In the interests of procedural economy, and in line with the Court's approach in a number of recent cases, ( 36 ) it would in my opinion be appropriate for the Court to deal with the relevance of Articles 30 and 36 of the Treaty in the present ruling.

55. It is hardly open to doubt that specimens of exotic subspecies fall within the scope of Article 30 as ‘goods taken across a frontier for the purposes of commercial transactions ... whatever the nature of those transactions’. ( 37 ) This position was implicitly adopted by the Court in Van den Burg, ( 38 ) and explicitly by the Commission (though not in its observations in the present case) and the European Parliament, in presenting and examining, respectively, the proposal for a regulation on possession of and trade in specimens of species of wild fauna and flora. ( 39 ) The proposal, which was based on both Articles 100a and 113 of the Treaty, was justified by the Commission on the ground that the ‘Member States have maintained and taken an increasing number of stricter measures with regard to trade in a great many species — both covered and not covered by [Regulation 3626/82] — thereby creating trade barriers between themselves which are not compatible with the proper functioning of the internal market and can therefore not be maintained’. ( 40 ) The national provisions at issue in the main proceedings appear to me to be just such a measure, which must be considered in the light of the rule of reason developed by the Court in ‘Cassis de Dijon’, ( 41 ) and of Article 36 of the Treaty.

56. It is settled case-law that ‘in the absence of common rules relating to the marketing of the [goods] in question, obstacles to free movement within the Community resulting from disparities between the national laws must be accepted in so far as such rules, applicable to domestic and imported products without distinction, may be recognized as being necessary in order to satisfy mandatory requirements recognized by Community law ... [that such] rules must ... be proportionate to the aim in view’, and that the protection of the environment is one such mandatory requirement. ( 42 ) As noted above, I do not accept the view that trade in exotic specimens comes within the marketing rules laid down in the Directive; the national provisions may be considered indistinctly applicable, in that they prohibit the importation and sale of such specimens regardless of their provenance. ( 43 ) It is necessary, therefore, to consider the justification for and proportionality of these rules.

57. Though the Treaty does not explicitly mention the conservation of wild fauna as forming part of the Community's environmental objectives, it is generally accepted as contributing to ‘preserving, protecting and improving the quality of the environment’ in line with the first indent of Article 130r(1) of the Treaty. ( 44 ) While the parties did not address this issue expressly, certain of the arguments advanced in favour of the extensive interpretation of the term ‘species’ in Article 1 of the Directive examined above could be taken as relevant.

58. It was submitted, for example, that trade restrictions were necessary to combat the ‘falsification’ of fauna; I take this to refer to the use of the sale of exotic birds as a cover for the sale of European wild birds. No evidence of the existence of such an undercover trade was proffered, or of how national provisions such as those at issue in the main proceedings would contribute to combating such practices; nor was it demonstrated that measures less restrictive of trade between Member States could not achieve this objective equally satisfactorily.

59. A number of the parties relied on the dangers of hybridization, if specimens of exotic subspecies were released into the wild and were able to interbreed with specimens of the European subspecies. At the hearing, the Commission's expert explained that a hybrid is, in fact the progeny of the crossbreeding of specimens of different species, but that the release into the wild of large numbers of exotic birds would create what was termed ‘genetic pollution’. Given the very heavy reliance on arguments based on genetics by most of the parties to the proceedings, it is somewhat surprising that this concept was only introduced into the debate at a very late stage, and regrettable that no indication of the nature or the effects of genetic pollution on the conservation of the European goldfinch was given. Since we are speaking of the introduction of a subspecies which, by definition, is capable of interbreeding with the existing European subspecies, a consequence which is not selfevidently harmful, we would need to know much more clearly how and why, apart from the adoption of a pejorative description, it should be so considered. Article 11 is again of interest. In the case of species, if the term is to be so restricted, it recognizes the possibility of the introduction of new species to the wild, subject to protection against prejudice to local flora and fauna and to consultation with the Commission. This is very far from a complete ban.

60. Be that as it may, it has not been shown that a national rule restricting trade in exotic birds, such as that at issue in the main proceedings, contributes to preventing genetic pollution, even if it were to be assumed, for the sake of argument, that measures against genetic pollution were in accordance with the Community's environmental objectives. A national import ban prevents the entry of such birds onto the territory of a given Member State, but it does not prevent their breeding with European subspecies of the same species in the territory of the Community. I also consider it significant that the Commission has not taken any steps to prevent the traffic in exotic specimens referred to above. ( 45 ) Though this inaction contradicts the position it has adopted in the present proceedings, it is consistent with the views the Commission has consistently expressed in answer to parliamentary questions, to the effect that ‘a blanket ban on trade in wild birds is not necessary’, ( 46 ) and with the proposed regulation on the trade in specimens of wild fauna mentioned above, ( 47 ) which would control but not prohibit such importations.

61. Though the Dutch Government sought to justify its national provisions which effectively prohibit imports, on the ground that it was very difficult to distinguish between the subspecies at issue in the present proceedings, it failed to explain how the relevant national authorities had been able to charge the plaintiff in the main proceedings with the possession of Carduelis carduelis caniceps as distinct from Carduelis carduelis carduelis. In such circumstances, I am not convinced that the Dutch Government can rely on any danger from genetic pollution to justify a prohibition on the importation of Carduelis carduelis caniceps from another Member State.

62. It was suggested that the import prohibition could be justified on the ground of ‘the protection of ... [the] life of ... animals’ in accordance with Article 36 of the Treaty. This point was not fully argued in either the written or oral submissions; no evidence of an interest capable of justifying a derogation from Article 30 of the Treaty in accordance with Article 36 was submitted, nor was it demonstrated how the prohibition on importing exotic specimens would eliminate or reduce any risks to animal health.

63. In the absence of any sufficient evidence or argument to show that the provisions in question have as their purpose or effect the protection of the environment, or that other measures less restrictive of trade between Member States would not have achieved the intended environmental objective equally satisfactorily, I can only conclude that the Dutch prohibition on the sale of specimens of exotic subspecies of protected species is not justified under the Directive, and creates an obstacle to trade which is incompatible with Article 30 of the Treaty.

VI — Conclusion

64. In the light of the foregoing, I recommend that the questions of the Gerechtshof,'s-Hertogenbosch be answered as follows: (1) Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds does not apply to specimens of wild birds of subspecies which do not occur naturally in the wild state in the European territory of the Member States, even if other subspecies of the same species do occur in this territory and are consequently protected under the Directive. Accordingly, Article 14 of the Directive may not be relied upon to justify national provisions protecting non-European subspecies. (2) The Court has no jurisdiction to answer the second question, as it has not been shown that the subspecies at issue in the main proceedings cannot in fact be distinguished from the European subspecies of the same species. (3) Article 30 of the Treaty must be interpreted as prohibiting national rules which prevent the importation from one Member State to another Member State of specimens of non-European subspecies of protected species, such as the rules at issue in the main proceedings.

( *1 ) Original language: English.

( 1 ) Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds; OJ 1979 L 103, p. 1.

( 2 ) In the interests of brevity, I will sacrifice accuracy by referring throughout to ‘Europe’ rather than the ‘European territory of the Member States’.

( 3 ) A list of such species, generally referred to as ‘I. R. S. N. B 1988’, is published in the Commission's first report on the application of the directive, EUR 12835 (1990).

( 4 ) Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora; O] 1992 L 206, p. 7.

( 5 ) Case C-38/89 Blanguemon [1990] ECR I-83, paragraphs 7 and 8 of the judgment.

( 6 ) See, for example, Case 228/87 Criminal proceedings against X [1988] ECR 5099, paragraph 7 of the judgment.

( 7 ) This is reviewed by Wouter Wils, ‘The Birds Directive 15 years later: a survey of the case-law and a comparison with the habitats directive’, Journal of Environmental Law, Vol.6, p. 219 (1994).

( 8 ) Cramp and Simmons (eds.), Handbook of the Birds of Europe lhe Middle East and North Africa — The Birds of the Western Palaearctic, Oxford University Press, Oxford, 1977, Vol. I, Introduction, p. 2.

( 9 ) The authoritative value of Cramp and Simmons in the field of wild birds was noted by the Court in its judgment in Case C-157/89 Commission v Italy [1991] ECR I-57, paragraph 15.

( 10 ) Loc. cit.

( 11 ) Loc. cit.

( 12 ) Encyclopaedia Britannica, Fifteenth Edition, Chicago, 1992, Vol.15, p. 95.

( 13 ) Applied throughout the Community by virtue of Council Regulation (EEC) No 3626/82 of 3 December 1982; OJ 1982 L 384, p. 1 (hereinafter ‘Régulation 3626/82’); the Convention is reproduced at ibid., p. 7.

( 14 ) Counsel for Mr Van der Feesten sought to distinguish between exotic wild birds and birds living freely in the wild in Europe; however, exotic wild bird species which are not present in Europe do not come within the scope of the Directive in any case. This raises a further anomaly. It would be perfectly lawful under the proposed extensive interpretation of Article 1 to import and trade in birds of non-European species, but not of non-European subspecies where another subspecies of the same species occurred in Europe.

( 15 ) European Community Environmental Legislation, Office for Official Publications of the European Communities, 1992, Volume 4, pp. 14 to 48.

( 16 ) Article 1(3) of the Directive originally excluded Greenland, though the Treaty no longer applies to Greenland, in accordance with the Treaty of 13 March 1984 (OJ 1985 L 29, p. 7).

( 17 ) OJ 1973 C 112, p. 40 (emphasis added).

( 18 ) Opinion of 25 May 1977, paragraphs 1.1, 1.2, and 1.5 (emphasis added); OJ 1977 C 152, p. 4.

( 19 ) Opinion of 14 June 1977, paragraphs 1 and 7 (emphasis added); OJ 1977 C 163, pp. 28 and 29.

( 20 ) Cited in footnote above.

( 21 ) Article 1(a) and II. 1 of the Convention, loc. cit., p. 7.

( 22 ) OJ 1982 L 210, p. 10.

( 23 ) Second report on the application of Directive No 79/409/EEC on the conservation of wild birds, COM(93) 572 final of 24 November 1993, p. 2 (emphasis added).

( 24 ) Case 247/85 Commission v Belgium [1987] ECR 3029, paragraph 22 of the judgment (emphasis added).

( 25 ) Case C-169/89 [1990] ECR I-2143, paragraph 9 of the judgment.

( 26 ) In its written observations, the Dutch Government had argued that there was often little difference between subspecies, which is rather less categorical than its position at the oral hearing.

( 27 ) Paragraph 24 of the present Opinion.

( 28 ) OJ 1992 C 26, p. 1; an amended text of the proposal was submitted to the European Parliament and the Council on 21 January 1994; OJ 1994 C 131, p. 1.

( 29 ) Encyclopaedia Britannica, cited in footnote 12 above, Vol. 18, p. 872; this factor was adverted to by the Commission's expert at the oral hearing.

( 30 ) Case C-435/92 [1994] ECR I-67, pp. 75-77.

( 31 ) Joined Cases C-422/93 to C-424/93 Zabala Erasun and Others v Immuto National de Empleo [1995] ECR I-1567, paragraph 29 of the judgment.

( 32 ) Case 52/84 Commission v Belgium [1986] ECR 89, paragraph 16 of the judgment.

( 33 ) The question is dealt with below (poims 55 to 63)

( 34 ) Case 128/78 Commission v United Kingdom [1979] ECR 419, paragraph 10 of the judgment.

( 35 ) See points 27 to 36 of my Opinion of 26 October 1995 in Case C-149/94 Vergy on birds raised in captivity, which I also consider to be outside the scope of the Directive.

( 36 ) In Case C-451/93 Délavant [1995] ECR I-1545, for exampie, the Court answered the question the national court should properly have asked, rather than being bound by an erroneous assumption as to the identity of the applicable provisions (paragraph 12 of the judgment). In Case C-56/94 SCAC [1995] ECR I-1769, the Court answered one question which was not strictly necessary, ‘in order to give a useful answer’ to the national court (paragraph 26 of the judgment).

( 37 ) Case C-324/93 Evans Medical Ltd and Macfarlan Smith Ltd [1995] ECR I-563, paragraph 20 of the judgment.

( 38 ) Cited in footnote 25 above, paragraph 6 of the judgment.

( 39 ) Proposal cited in point 41 of the present Opinion; European Parliament opinion of 24 June 1993; OJ 1993 C 194, p. 289.

( 40 ) COM(91) 448 final, paragraph 2.5, p. 4.

( 41 ) Case 120/78 Rewe-Zentral v Bundesmonopolverwaltung für Branntwein [1979] ECR 649, paragraph 8 of the judgment.

( 42 ) Case 302/86 Commission v Denmark [1988] ECR 4607, paragraphs 6 and 9 of the judgment; the term ‘goods’ is preferred to ‘product’, given the nature of the goods in question.

( 43 ) On the applicability of the rule of reason to a prohibition on importation and marketing, see Case 216/84 Commission v France [1988] ECR 793, paragraph 7 of the judgment.

( 44 ) See, for example, the first indent of the habitats directive, cited in footnote 4 above.

( 45 ) Point 17 of the present Opinion.

( 46 ) See, for example, European Parliament written question E-3182/93 by Jessica Larive; OJ 1994 C 296, p. 49, and the references given in the Commission's answer.

( 47 ) Point 41 of the present Opinion.