OPINION OF ADVOCATE GENERAL

FENNELLY

delivered on 26 October 1995 ( *1 )

I — Introduction

1. That the protection under a European wild birds directive ( 1 ) should be claimed for a tame specimen of the Canada goose, originally introduced into England as an ornamental bird and that, furthermore, the bird in question should belong to a dwarf subspecies unknown in the wild in Europe present the Court with an eccentric background to this reference for a preliminary ruling from a French court. You are being asked to rule for the first time on the application of the Directive to birds raised in captivity and to consider the extent of the power of a Member State to adopt stricter protective measures than those required by the Directive.

II — Facts and procedure in the main proceedings

2. The defendant in the main proceedings, Mr Didier Vergy, according to statements of his counsel at the oral hearing, is a farmer who specializes in breeding wildfowl, including ornamental birds for supply to public and private parks, and in particular the City of Paris; the birds in question are all born and raised on his farm. The national judge may, of course, verify these and other relevant facts. Mr Vergy was accused of offering for sale and selling, at Landes-sur-Ajonc on 17 March 1992, a live specimen of a species of bird protected under the French Code Rural (Rural Code) and the Arrêté Ministériel (Ministerial Order) of 17 April 1981. The order for reference indicates that the specimen in question was a black Canada goose (‘bernache noir du Canada’), though some doubt has been cast on the national court's identification of the specimen in question; it is common ground in any case that the particular specimen of Canada goose was born and raised in captivity.

3. The Canada goose or Branta canadensis is a species of the Anatidae family, more commonly known as wildfowl. Apart from the Canada goose, three other species of Branta are found in the wild in Europe, namely the barnacle goose {Branta leucopsis), the brent goose {Branta bermela) and the red-breasted goose (Branta ruficollis). ( 2 ) One leading authority lists the characteristics of the Canada goose as follows: ‘[highly] malleable to human influence. Learns safe limits quickly and soon settles within them. Tame or feral stocks thus readily planted in heart of metropolis such as London, as well as on ornamental waters in country parks.’ ( 3 ) It is the largest goose found in Europe, with quite distinctive colouring; the species is established in a number of Member States, including France. ( 4 )

4. The matter of the identification of the specimen might be said to have led the parties on something of a wild-goose chase, but for the fact that the bird in question appears to be tame. Its description as a ‘bernache noir [sic] du Canada’ in the order for reference does not correspond to any subspecies recognized in avian taxonomy; while they suggest various possible alternatives, both the French Government and the Commission are of the view that the identification of the subspecies to which the specimen seized belongs is, in this case, not necessary for the interpretation of the Directive. At the oral hearing, counsel for MrVergy contended that the specimen sold was a dwarf Canada goose, or Branta canadensis minima, a subspecies of Canada goose which is not found in the wild anywhere in the European territory of the Member States. He argued, plausibly in my view, that the use of the word ‘noir’ (which should, presumably, at least have been ‘noire’) in the order for reference was a typing error, since the correct term would be ‘naine’.

5. The identification of the specimen in such proceedings is, of course, one of the matters of fact falling within the competence of the national judge; this Court's duty is to identify the obligations which arise for the Member States in accordance with the Directive. As I understand it, the Canada goose (Branta canadensis) is a polytypic species, viz. a species which shows geographical variations to such an extent that two or more subspecies are recognized. ( 5 ) Being one of the ‘species of naturally occurring birds in the wild state in the European territory of the Member States’, the Canada goose is in principle protected under the Directive. ( 6 )

6. The defendant in the main proceedings has challenged the compatibility of the relevant national provisions with the Directive, Article 30 of the EC Treaty, the Convention ón International Trade in Endangered Species of Wild Fauna and Flora of 3 March 1973 (hereinafter ‘the Washington Convention’), ( 7 ) and Council Regulation (EEC) No 3626/82 of 3 December 1982 on the implementation in the Community of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (hereinafter ‘Regulation 3626/82’) ( 8 )

7. By Order of 22 March 1994, the Tribunal de Grande Instance (Regional Court), Caen referred the following questions to the Court for a preliminary ruling: ‘1. Must Council Directive 79/409/EEC of 2 April 1979, and particularly Articles 1, 2, 5 and 6 thereof, be interpreted as permitting a Member State to enact rules restricting or prohibiting trade in specimens belonging to a species which is not listed in the annexes to that Directive? 2. Would the answer to the first question be any different by reason of the fact that the specimens of the species in question were born and reared in captivity or that the natural habitat of the species in question did not occur in the country concerned?’

Ill — The national provisions

8. Article L. 211-1 of the Rural Code prohibits, inter alia, the transport, the peddling, the use, the offer for sale, the sale and the purchase of non-domestic species of animals, where a particular scientific interest or the requirements of the preservation of the national biological heritage justify their conservation. In accordance with Article R. 211-1 of the Rural Code, the list of protected animal species is drawn up jointly by the minister responsible for the protection of nature and the Minister for Agriculture. The relevant list was established by a Ministerial Order of 17 April 1981, ( 9 ) which prohibits, inter alia, the capture or seizure, and the offer for sale, sale or purchase of ‘Bernache (Branta sp.)’. The French Government has informed the Court that the term ‘Branta sp.’ is intended to cover all species of Branta.

IV — Council Directive 79/409/EEC

9. 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’; ( 10 ) 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).

10. 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.’

11. 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’. ( 11 )

12. 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 (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).

13. 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. Member States may derogate from the prohibitions contained in Articles 5 and 6 when there is ‘no other satisfactory solution’, for the specified reasons and under the restrictive conditions set out in Article 9; one of the specified reasons is the breeding of wild birds ‘for the purposes of research and teaching, of repopulation [and] of reintroduction’ (Ankle 9(1 )(b)).

14. The Directive contains five annexes, of which three are further subdivided, Annexes II and IV into two parts, and Annex III into three; only Annexes II and III are here relevant. Annex II defines the species which may be hunted in accordance with national legislation, either throughout the whole of the geographical area to which the Directive applies (Annex II/l) or in particular Member States (Annex II/2). Commerce in specimens of bird species which would otherwise be prohibited by virtue of Article 6(1) is permitted for the species listed in Annex III/l, ‘provided the birds have been legally killed or captured or otherwise legally acquired’ (Article 6(2)). Member States may authorize such commerce under more limited circumstances in respect of the species listed in Annex III/2 (Article 6(3)). The Commission must carry out studies on the biological status of the species listed in Annex III/3, with a view to their possible inclusion in Annex III/2; pending a decision in this regard by the Committee for the Adaptation to Technical and Scientific Progress of the Directive, the Member States may apply existing national rules, without prejudice to Article 6(3).

15. 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 in the preamble to the Directive casts any light on the purpose or scope of this article.

V — Examination of the questions submitted to the Court

16. The French Government and the Commission submitted both written and oral observations, while the defendant in the main proceedings submitted observations at the oral hearing.

(1) The first question — the scope of the Directive

17. The first question put by the national court concerns the application of the protective provisions of the Directive to birds of species other than those mentioned in the annexes. The intent of this question is not immediately obvious since all the articles cited primarily impose obligations. Only Article 6 contains any permissive element. Furthermore, these prohibitions are not linked to any of the lists in the annexes, and no reference is made to Article 14. The obligation of this Court is, however, to interpret the questions referred so as to furnish an answer which will be of benefit to the national judge in deciding the case before him.

18. The French Government notes in limine that, contrary to the impression given by the order for reference, the Canada goose is listed in the annexes to the Directive, in Annex 11/1, and that the question should therefore be rephrased as being to determine if Articles 1, 2, 5 and 6 of the Directive permit a Member State to adopt rules restricting or prohibiting trade in specimens of the Canada goose. Article 1 extends the protection of the Directive to all species of wild birds occurring naturally in Europe, and the Canada goose is unarguably such a species. In the absence of any express provision to the effect that the annexes concern only a particular subspecies, race or population, the government concludes that they cover the entirety of the species, including any subspecies, race or population. While it is true that the description ‘black Canada goose’ does not correspond to any subspecies recognized by the specialized literature, the national judge may have intended to refer to the Branta canadensis fulva. This does not in any case affect the answer to the question, as all the Canada geese present or captured in the wild benefit from the protection established by the Directive.

19. The French Government notes furthermore that the Canada goose does not appear in any of the lists in Annex III to the Directive, and hence comes within the prohibition on trade in wild birds laid down by Article 6(1). The fact that this species appears in Annex II/l but not Annex III demonstrates the clear intention of the Directive to prohibit trade in specimens of this species. From the case-law of the Court, and in particular its judgment in Commission v Italy, ( 12 ) it is clear that the economic and recreational requirements referred to in Article 2 of the Directive are taken into consideration elsewhere in the Directive itself, and would not justify derogations from the specific obligations imposed by Article 6. Of course, all of these arguments of the French Government must be viewed in the light of its opinion, in relation to the second question, that the Directive does not apply to birds born and raised in captivity.

20. The Commission submits that the scope of the Directive is not limited to those species listed in the annexes, but is determined by Article 1, which refers to all species occurring in the wild, including subspecies of species which are covered by the Directive. As there is no such subspecies as the ‘black Canada goose’, the Commission surmises that the national judge intended to refer either to the Branta bernicL nigricans or Branta canadensis occidentalis; in either case, the specimen belongs to a species which Member States are obliged to protect under the Directive.

Conclusion on the first question

21. The question of whether the Directive seeks to protect all the subspecies of a particular protected species, regardless of whether the subspecies is to be found in the wild in Europe, is the main issue before the Court in Case C-202/94 Van der Feesten; in my Opinion in this latter case, to be delivered today, I am recommending that the Court rule that the scope of the Directive extends only to those subspecies of protected species which subspecies occur in the wild in the European territory of the Member States. ( 13 ) If the Tribunal de Grande Instance were to find that the specimen whose sale gave rise to the present proceedings belonged to a subspecies which does not occur in the wild in Europe, and the Court were to follow my recommendation in Van der Feesten, then the Directive would have no application to the circumstances of the main proceedings. In this case, the French provisions would need to be considered in the light of Article 30 of the Treaty. ( 14 ) However no question on that issue has been referred by the national court in the present case.

22. Assuming the Directive is relevant to the resolution of the main proceedings, the first question posed by the referring court, which is not restricted to the Canada goose but is phrased in general terms, may be answered shortly. The definition of the species protected by Article 1 is to be found in the expression ‘all species of naturally occurring birds in the wild state’ and not in any of the annexes. Thus the obligation to prohibit trade extends to specimens of all such species. This follows from the wording and scheme of the Directive itself, which, unlike, for example, certain international conventions on the protection of wildlife, ( 15 ) does not list protected species but seeks to protect all European wild birds. Article 1(1) also determines the scope of the further protective obligations laid down by Articles 2, 3, 5, 6(1), and 10 of the Directive. By contrast, the derogations or exceptions permitted under Articles 6 and 7 are restricted to the species ind subspecies listed in the relevant annexes, svhile optional national derogations under Article 9 must expressly indicate inter alia which species are subject to such derogations [Article 9(2), first indent).

23. The species ‘Canada goose’ is included in Annex II/l to the Directive; it may therefore be hunted throughout the territory of the Member States to which the Directive applies, where this is permitted under national legislation (Article 7(1) and (2)).

24. The Canada goose may be hunted but, as it is excluded from the lists set out in Annex HI to the Directive, it may not be sold. ( 16 ) This interpretation of the scope of the Directive is borne out by the settled case-law of the Court. In Commission v Belgium, the Court noted that, while Member States may, provided certain conditions are respected, ‘authorize the marketing of the species listed in Annex III and the hunting of the species listed in Annex II to the directive ... [it] follows that, for the bird species which are not listed in those annexes or if the conditions and limits provided for in [Articles 6(2) to (4)] are not observed, the general prohibitions remain applicable’. ( 17 ) The defendant Member State in that case was found not to have complied with its obligations under Article 6 of the Directive, inter alia in that it allowed the marketing of several species of wild birds which were not listed in Annex III to the Directive.

25. This result is neither anomalous nor illogical; as the Court noted in Commission v Italy,‘the protection to be afforded under the directive ... is intended to avoid a situation in which all the species that may be hunted may also be marketed because of the pressure which marketing may exert on hunting and consequently on the population level of the species in question’. ( 18 )

26. The answer to the first question should therefore, in my view, be that the Directive must be interpreted as obliging Member States to prohibit trade in specimens of all species of naturally occurring birds in the wild state in Europe, regardless of whether or not they are listed in the annexes to the Directive, and subject to the derogations allowed by Article 6 and to the possibility of an exceptional derogation under the conditions set out in Article 9.

(2) The first part of the second question — specimens born and raised in captivity

27. The first part of the second question seeks essentially to ascertain whether the protective provisions of the Directive extend to specimens born and raised in captivity, and whether the Member States are therefore entitled to enact rules restricting and prohibiting trade in such specimens. This issue has not previously been explicitly decided by the Court, although in Commission v Belgium, Advocate General Da Cruz Vilaça expressed the clear opinion that the Directive does not extend to specimens in captivity. ( 19 ) The parties who have made submissions are unanimously of the same view.

28. While admitting that the Directive does not expressly establish a distinction between specimens raised in captivity and other specimens, in the view of the French Government, its general thrust is to protect specimens present in the wild and those taken from the wild, but not those born and raised in captivity. The tenth recital in the preamble to the Directive shows that it seeks to avoid any excessive exploitation of natural specimens by prohibiting trade in such specimens, and that Article 6(1) therefore does not apply to specimens raised in captivity. The government draws an analogy with Article 13(l)(b) of the habitats directive of 21 May 1992, ( 20 ) which prohibits, inter alia, trade in specimens taken in the wild, explicitly excluding specimens born in captivity; the Council would not have adopted a radically different solution for other groups in the animal kingdom to that which obtains for wild birds. It concludes that the Directive does not require protection of specimens belonging to protected species which were born in captivity.

29. The Commission observes that the Directive seeks to guarantee the maintenance of bird populations in the wild, and that the extension of the protective regime to specimens of wild species which live in captivity does not correspond with this environmental objective. This part of the question should therefore be answered in the negative.

30. The defendant in the main proceedings also took the view that the Directive seeks only to protect wild fauna, and does not apply to specimens born and raised in captivity.

Conclusion on the application of the Directive to birds in captivity

31. I find myself in agreement with the unanimous submissions received on this issue. While a bird species enjoys the protection of the Directive merely by ‘naturally occurring in the wild state’ in Europe, Article 1 is not to be interpreted so literally or mechanically as to protect every particular bird, wild or not, so long as some of the same species are to be found in the wild. Such a result would scarcely serve the need for the ‘conservation of the natural environment’ (preamble, second recital) or the ‘protection and management of natural resources as an integral part of the heritage of the peoples of Europe’ (preamble, eighth recital). It would be absurd if the pursuit of these desirable aims should lead to the suppression of a long-established and useful trade in tame or ornamental birds, perhaps even to the impoverishment of our parks.

32. The species whose ‘protection, management and control’ is, according to the second sentence of Article 1(1), covered by the Directive are, in context, only those species ‘naturally occurring’ and ‘in the wild state’. These phrases, which occur in slightly different forms in the recitals, are coercive of the conclusion that the Directive does not cover specimens born and raised in captivity.

33. The opinion I have expressed is not undermined in any way by the substantive provisions of Articles 2 to 8, the teeth of the Directive. I will avoid an exhaustive treatment of these and draw attention only to the characteristic provisions of Anieles 3 and 4, dealing with the preservation of habitats, Article 5, prohibiting inter alia any interference with eggs or nests, and Articles 7 and 8, regulating hunting. There is no reference to birds in captivity and, significantly in my view, no prohibition on breeding. From this last point alone, I believe it becomes quite clear that the prohibitions in Article 6 on the sale, transport for sale or keeping for sale do not apply to birds raised in captivity.

34. Article 5(e) is to my mind also revealing. While it prohibits the ‘keeping of birds of species the hunting and capture of which is prohibited’, it is expressed to be ‘without prejudice to Articles 7 and 9’. These envisage, in different ways, derogations from the general ban on killing and capture imposed by Article 5(a). However, the prohibition on ‘keeping’ (Article 5(e)) is narrower than the scope of Article 1(1), thus reinforcing the view that there is no generalized prohibition on keeping birds merely because they belong to a protected species.

35. The Court has also recognized implicitly that the breeding in captivity of protected species is not prohibited by the Directive. In Commission v Belgium, the Court found that the Belgian rules allowing the capture of certain protected birds were not justified under Article 9 of the Directive, inter alia, on the ground that the government had not shown there was ‘no other satisfactory solution, in particular the possibility that the bird species concerned may reproduce in captivity’. ( 21 )

36. I have therefore no difficulty in concluding that specimens of species of wild birds born and raised in captivity are not protected by the Directive.

(3) Restrictions on trade in specimens in captivity: Article 14 of the Directive and Articles 30 and 36 of the Treaty

37. The conclusion set out in the last paragraph does not, however, completely answer the first part of the second question, in so far as this seeks guidance on the possibility for a Member State to restrict or prohibit trade in birds to which the Directive does not apply. While it is true that the referring court does not phrase the question in these terms, the second question, read with the first, raises the permissibility of rules ‘restricting or prohibiting trade’. Since I am of the view that the Directive does not cover birds bred and raised in captivity, and since the French Government places reliance on both Article 14 of the Directive and Articles 30 to 36 of the Treaty, the relevance of these provisions must be considered. In the interests of procedural economy, and in line with the Court's approach in a number of recent cases, ( 22 ) it would in my opinion be appropriate for the Court to deal with this matter in the present ruling.

38. According to the French Government, the trade ban imposed by Article L. 211-1 of the Rural Code extends to specimens born in captivity as well as those taken from the wild; it is motivated by the requirements of the conservation of species of birds occurring naturally in the wild, which are consistent with the purpose of the Directive. The government also notes that no provision of Regulation 3626/82 ( 23 ) precludes national rules which prohibit trade in France in the black Canada goose; only the Aleutian Canada goose (Branta canadensis leucopareia) and the Hawaiian goose (Branta sandvicensis) are listed in Annex I, and the red-breasted goose (Branta ruficollis) in Annex II. ( 24 ) The black Canada goose is therefore not covered either by the regulation or the Washington Convention; in any case, the regulation does not govern trade within the Member States in the species it protects. While Article 6(1) of the regulation expressly allows the Member States to exempt ‘specimens of an animal or plant species ... bred in captivity or artificially propagated’ from the prohibition on trade, this facility — which does not apply to the black Canada goose — may not be interpreted as preventing Member States from banning trade in specimens of species of protected animals which have been raised in captivity. In any case, Article 15 of that regulation allows Member States to take stricter measures, in particular ‘for the conservation of native species’, which could cover a prohibition on trade in specimens of non-domestic species born and raised in captivity.

39. The government further submits that the national law can be justified under Article 14 of the Directive, Article 36 of the Treaty, and the Court's case-law on the interpretation of Article 30, in particular its ruling in the ‘Walloon waste case’. ( 25 )

40. The national provisions are justified by France by the following factual considerations: — trade in reared specimens could constitute a cover for trade in specimens fraudulently taken in the wild; — such a trade necessarily implies the taking of the progenitors in the wild; and — the release of reared specimens, a corollary of the trade in such specimens, could have adverse effects on the conservation of the species for behavioural and genetic reasons (loss of the species' genetic diversity through mixing of local subspecies or genotypes).

41. The Commission did not take any position on the matter of the possible application of Article 30 of the Treaty to the French ban on trade in specimens of wild birds not covered by the Directive in its written submissions. At the oral hearing, the Commission's agent advanced the view that this question was not relevant in the circumstances of the present case, which was ‘une affaire franco-française’.

42. Counsel for Mr Vergy suggested at the oral hearing that, as the French provisions did not make any distinction between birds born and raised in captivity and those in the wild, the national court could interpret these provisions in the light of the Directive and find that the prohibition on trade concerned only specimens in the wild state. If not, the application of the trade ban imposed by the Rural Code and the Ministerial Order of 17 April 1981 would, in his view, create an obstacle to the circulation of birds born and raised in captivity, which were freely on sale in Belgium and the Netherlands; such a rule would be contrary to Article 30 of the Treaty. In support of this view, Mr Vergy cited the explanatory memorandum of the Commission proposal for a Council regulation laying down provisions with regard to the possession of and trade in specimens of species of wild fauna and flora, in which the Commission reports 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’. ( 26 )

43. The defendant in the main proceedings also noted that such a prohibition on trade in one Member State would lead to a result which was directly contrary to the objectives the Directive sought to achieve. The absence of any legal trade in ornamental birds would drive park owners either to illicit trade in specimens not born and raised in captivity, or to taking specimens in the wild. The alleged danger that trade in specimens in captivity could cover a fraudulent trade in protected birds would not justify the prohibition on trade, as all birds bred in captivity since 1979 have been ringed from an early age. Nor does the breeding of such birds in captivity necessarily depend on the taking of progenitors in the wild, as they are available in other Member States. The suggested justification for the ban on grounds of genetic purity is contradicted by the fact that possession of specimens in captivity is not prohibited. Finally, the French provisions cannot be justified on the grounds of Article 14 of the Directive, as birds born and raised in captivity are outside the scope of application of the Directive.

Conclusions on restrictions on trade in captive specimens

44. In the first place, if the Directive were to apply to captive specimens, it seems to me that with or without the reasons advanced by the French Government, Article 6(1) of the Directive would require, and not merely permit, prohibiting their sale, transport for sale and keeping for sale. Furthermore, if otherwise legitimate trade in specimens born and raised in captivity were to be used as a cover for trade in specimens of wild birds protected under the Directive in a given Member State, the Member State concerned would be obliged to take action to suppress such undercover trade. Similarly, the Member States are obliged to take action to prevent the taking in the wild of specimens of Canada goose or their eggs. Such action in each case would not constitute ‘stricter measures’ within the meaning of Article 14 of the Directive, but would represent merely the proper enforcement of Articles 6(1) and 5, respectively.

45. If I am correct in my view that the Directive does not extend to birds raised in captivity, can Article 14 none the less be invoked by a Member State? The Court has noted that ‘[the] directive has ... regulated exhaustively the Member States' powers with regard to the conservation of wild birds’. ( 27 ) Since, in my view, the Directive does not seek to protect specimens in captivity, the French prohibition on trade in specimens bred and raised in captivity cannot, in my view, be justified under Article 14. I cannot, in logic, see how a provision of a Directive permitting stricter measures can be invoked so as to apply to a subject-matter which is not within its scope.

46. Article 15 of Regulation 3626/82, which has been cited by the French Government, also appears not to be relevant. Article 15(1) allows Member States to take stricter protective measures, under certain conditions, in respect of ‘the species to which this Regulation applies’; however, the Canada goose is not an endangered species to which the regulation applies, as the French Government has recognized. This does not tell us whether that permissive provision extends to specimens not covered by the regulation. The question is answered in Article 15(3), which uses explicit language not found in Article 14 of the Directive.

47. Article 15(3) of the regulation permits the Member States ‘[for] the purpose of protecting the health and life of animals or plants ... [to] take measures similar to those provided for in the Regulation in respect of species not covered by the Regulation’. Article 6 of the regulation prohibits the sale of specimens of protected species, and a trade ban such as that in question might, on one reading of the regulation, qualify as a similar measure. It should be noted, however, that according to the preamble to the regulation ‘measures relating to the application of the Convention to trade must not affect the free movement of products within the Community and must apply only to trade with third countries’ (fifth recital). This would therefore exclude a measure which had the effect of preventing the free movement of specimens in captivity from one Member State to another. As is dear from the ninth recital in the preamble, any such ‘stricter measure’ adopted under the regulation would in any case fall to be evaluated against the Treaty rules on the free movement of goods. Furthermore, the French Government has not shown how its prohibition on the sale of such specimens would contribute in any way to the protection of the health and life of wild Canada geese, still less on Canada geese in captivity, as required by Article 15(3), given that both the wild birds directive and the habitats directive permit the breeding of specimens in captivity, ( 28 ) as indeed does French law.

48. In its observations in the present case, the French Government, rightly in my view, does not deny that the marketing ban contained in Article L. 211-1 of the Rural Code is a national measure ‘capable of hindering, directly or indirectly, actually or potentially, intra-Community trade [which may] be considered as ... having an effect equivalent to quantitative restrictions’, ( 29 ) or that the defendant in the main proceedings can rely on Article 30 of the Treaty.

49. It is hardly open to doubt that bird specimens born and raised in captivity ( 30 ) 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’. ( 31 ) This position was implicitly adopted by the Court in Van den Burg, ( 32 ) 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 laying down provisions with regard to possession of and trade in specimens of species of wild fauna and flora, cited above. ( 33 )

50. Furthermore, the Court has expressly recognized that ‘even though a law on the marketing of products does not directly concern imports, it may, according to the circumstances, affect prospects for importing products from other Member States and thus fall under the prohibition in Article 30 of the Treaty’. ( 34 ) In the present case, the marketing prohibition, which includes a ban on the transport of such specimens, may be considered as equivalent in practice to a complete prohibition on the importation of such goods into France; it is clear that it is not a ‘selling arrangement’ to which Article 30 of the Treaty does not apply by virtue of the doctrine laid down by the Court in Keck and Mithouard. ( 35 ) The French provisions at issue in the present case therefore must be considered in the light of the rule of reason developed by the Court in ‘Cassis de Dijon’ ( 36 ) and of Article 36 of the Treaty.

51. It is settled 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. ( 37 ) It has not been contended that the breeding of wild geese for ornamental purposes comes within any common marketing rules. Equally, it can be accepted that the French rules are indistinctly applicable, in that they prevent the marketing of specimens of wild birds regardless of whether the specimens were born and raised in France or elsewhere in the Community. It is necessary, therefore, to consider the justification for and proportionality of these rules.

52. 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(l) of the Treaty. ( 38 ) The French Government's justifications, summarized at paragraph 40 above, were supported by little more than mere assertions. It has not alleged, for example, that undercover (as distinct from illegal-) marketing, or the illegal taking of specimens in the wild, occurs within its jurisdiction, or that the activities of the defendant in the main proceedings in fact involve violations of the Directive.

53. The primary effect of the national rules in question is to prevent the sale of specimens which have been bred legally in France. Any protection of birds in the wild would appear, at best rather indirect, perhaps even hypothetical; indeed, these rules could in the long run discourage the breeding of such specimens, which might jeopardize the conservation of these species. Should the rather scant population of Canada geese in France come under threat, for example, through disease or changes in their habitat, it would appear to be impossible under a literal reading of the French provisions at issue to replenish that population by bringing in new specimens from other Member States to breed in captivity. Furthermore, as Mr Vergy has pointed out, the ban on any trade in reared species is more likely to encourage than prevent fraudulent marketing.

54. As to necessity, the French Government has not sought to show that other forms of action less restrictive of trade would not equally promote the protection of specimens in the wild. It has not demonstrated how the trade in reared specimens would in fact lead to the taking of progenitors in the wild. Indeed the permissibility of breeding in captivity from existing stock might have the opposite effect. It is equally possible that the ban on this trade would drive the owners of ornamental birds throughout France to taking specimens in the wild, or to engage in fraudulent trade in such specimens. It has also been pointed out that the birds are available in other Member States.

55. In its written observations, the French Government argued that the release of reared specimens into the wild ‘could have deleterious effects on the conservation of the species, for behavioural and especially genetic reasons’; regrettably, no details of the likelihood or the extent of these effects, nor any further explanation of the behavioural or genetic reasons, were supplied by any of the parties submitting observations in the present case. Notwithstanding this reticence, it seems obvious that, whatever the possible effects of the release of reared specimens into the wild, it is not the sale of such specimens per se which causes those effects, but rather their breeding in the first place; the government's arguments might have been more persuasive if the activity of breeding had been prohibited. In any case, the environmental policy of the Community favours the breeding in captivity of animal species where this is justified in the interests of biological diversity; in accordance with Council Decision 93/626/EEC of 25 October 1993 concerning the conclusion of the Convention on Biological Diversity, ( 39 ) the Community ‘shall, as far as possible and appropriate, and predominantly for the purpose of complementing in situ measures ... adopt measures for the ex situ conservation of components of biological diversity’ (Article 9(a), Biodiversity Convention). It has been suggested that the breeding of protected species under proper supervision can ‘serve as a high-quality genetic reservoir guaranteeing the survival of the species in the wild’. ( 40 )

56. Finally, on the question of what was termed ‘genetic pollution’ at the oral hearing in Van der Feesten, which might also arise in the present case if the national court were to find that the specimen in question belonged to a subspecies which is not native to Europe, the French Government's own expert at the same hearing testified that the introduction of specimens of a new subspecies could be permitted if the subspecies was perfectly identifiable, and the international scientific community was in agreement concerning the distinction between the subspecies in question. It was not contended that the distinction between the subspecies at issue in the present case caused any difficulty; in such circumstances, the French Government cannot rely on any danger from genetic pollution to justify a restriction on trade in specimens of the Canada goose bred and raised in captivity.

57. I am not convinced either by the French Government's argument that the prohibition is founded on ‘the protection of ... [the] life of ... animals’ in accordance with Article 36 of the Treaty. Under Article L. 211-1 of the Rural Code, the conservation of non-domestic animal species is subject to the existence of a particular scientific interest or the requirements of the conservation of the national biological heritage; neither of these constitute an interest capable of justifying a derogation from Article 30 of the Treaty in accordance with Article 36. Furthermore, in its judgment of 31 January 1984 in Commission v United Kingdom, the Court found that Article 36 would not justify steps against risks to animal health which are so slight or remote as not to be real; ( 41 ) the government has not identified either the risks to animal health or the extent of such risks, nor demonstrated how the prohibition on selling wild birds born and raised in captivity would eliminate or reduce these risks.

58. In the light of the foregoing, I am of the opinion that the French Government has not produced any sufficient evidence or argument to show that the provisions in question have as their purpose or effect the protection of the environment. Even if these provisions could be considered as having some protective effect, they have not been shown to be necessary to this end. In these circumstances, the French prohibition on the sale of specimens of protected species which were born and raised in captivity is not justified under the Directive or any other provision of Community law, and creates an obstacle to trade which is incompatible with Article 30 of the Treaty.

(4) The second part of the second question — the location of the natural habitat of the species in question

59. The second pan of the second question seeks essentially to ascertain whether a Member State may extend the protection of the Directive to wild birds whose natural habitat does not occur in its territory. It seems clear, however, that, according to the evidence put before the Court, a small number of specimens of Canada goose, of the order of a few thousand, can be found in the wild in the metropolitan area of France. The relevance of the question is not, therefore, easy to see, if the bird in question belongs to that species. As I have stated, if it belongs to a subspecies which does not naturally occur in the wild in Europe (and, a fortiori, not in France), the matter is governed by Van der Feesten. However, it is possible to give a straightforward answer to the question put by the national court.

60. The French Government notes that Article 1 of the Directive refers to ‘species of naturally occurring birds ... in the European territory of the Member States’ (emphasis added), and quotes from the Court's judgment in Commission v France, to the effect that ‘national legislation which delimits the protection of wild birds by reference to the concept of national heritage [is] incompatible with the Directive’. ( 42 ) The government concludes that the fact that the species does not have its natural habitat in the territory of the Member State concerned does not dispense the Member State from protecting the species in question. Similarly the Commission observes that the Directive covers species which do not occur naturally or habitually in the territory of one Member State, but which live in the wild in the territory of another Member State and which are transported, kept or sold in the first Member State. The defendant in the main proceedings supports this view.

61. I agree.

VI Conclusion

62. In the light of the foregoing, I propose that the questions submitted by the Tribunal de Grande Instance, Caen should be answered as follows: (1) Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds must be interpreted as obliging a Member State to prohibit trade in specimens of all species of naturally occurring birds in the wild state, whether or not they are listed in the annexes to the Directive, subject to the derogations allowed by Article 6(2) to (4), and to the possibility of an exceptional derogation under the conditions set out in Article 9 thereof. (2) The Directive does not apply to specimens of wild birds born and raised in captivity. Accordingly, Article 14 of the Directive may not be relied upon to justify national provisions protecting such specimens. (3) Article 30 of the Treaty must be interpreted as prohibiting the imposition of a ban on the marketing of specimens of wild birds born and raised in captivity such as that at issue in the main proceedings. (4) Under the Directive a Member State must protect all species of birds naturally occurring in the wild state in the European territory of the Member States to which the Treaty applies, regardless of whether or not the species occurs naturally in its territory.

( *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 (hereinafter ‘the Directive’).

( 2 ) Cramp and Simmons (eds), Handbook of the Birds of Europe the Middle East and North Africa — The Birds of the Western Palaearctic, Oxford University Press, Oxford, 1977, Vol. I, pp. 424 to 444.

( 3 ) Cramp and Simmons, op. cit., p. 425.

( 4 ) Commission's Second report on the application of Directive 79/409/EEC on the conservation of wild birds (COM(93) 572 final of 24 November 1993, p. 162).

( 5 ) Cramp and Simmons, op. cit., Introduction, p. 2.

( 6 ) But see paragraph 21, below, and my Opinion of today in Case C-202/94 Van der Feesten.

( 7 ) OJ 1982 L 384, p. 7.

( 8 ) OJ 1982 L 384, p. 1.

( 9 ) Journal Officiel de la République Française N. C. of 19 May 1981, p. 4758.

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

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

( 12 ) Case 262/85 [1987] ECR 3073.

( 13 ) The Opinion also deals with the compatibility with Article 30 of the Treaty of restrictions on trade in specimens of non-European subspecies of protected species.

( 14 ) See paragraphs 48 to 58, below.

( 15 ) The Washington Convention, cited in footnote above, is a case in point.

( 16 ) It appears from the Commission's second report on the application of the Directive that some Member States none the less permit trade in the Canada goose, op. cit., footnote above, p. 51.

( 17 ) Case 247/85 [1987] ECR 3029, paragraph 7 of the judgment, emphasis added.

( 18 ) Case 262/85, cited in footnote above, paragraphs of the judgment.

( 19 ) Case 247/85, cited in footnote above. Opinion, p. 3054.

( 20 ) Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora; OJ 1992 L 206, p. 7. The analogy is erroneous in my view, as Article 13 is exclusively concerned with plants.

( 21 ) Case 247/85, cited in footnote above, paragraph 41 of the judgment (emphasis added).

( 22 ) In Case C-451/93 Délavant [1995] ECR I-1545, for example, the Court answered the question the national court should properly have asked, rather Ulan 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).

( 23 ) Cited in footnote above.

( 24 ) In fact the three species are listed in Appendices I and II of the Washington Convention, rather than in the annexes to the regulation.

( 25 ) Case C-2/90 Commission v Belgium [1992] ECR I-4431.

( 26 ) COM(91) 448 final, paragraph 2.5, p. 4; see also OJ 1992 C 26, p. 1. An amended proposal was published in OJ 1994 C 131, p. 1.

( 27 ) Case C-169/89 Van den Burg [1990] ECRI-2143, paragraph 9 of the judgment.

( 28 ) See, respectively, paragraphs 31 and 36 above, and Article 14(2) of Council Directive 92/43/EEC, cited in footnote above.

( 29 ) Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837, paragraph 5 of the judgment.

( 30 ) As noted above, the following remarks apply equally, mutatis mutandis, to specimens of non-European subspecies of protected species.

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

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

( 33 ) Paragraph 42 of the present Opinion.

( 34 ) Case 75/81 Blagen [1982] ECR 1211, paragraph 7 of the judgment.

( 35 ) Joined Cases C-267 and C-268/91 [1993] ECR I-6097, paragraphs 16 and 17 of the judgment.

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

( 37 ) 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.

( 38 ) See, for example, the first recital in the preamble to the habitat directive, cited in footnote above.

( 39 ) OJ 1993 L 309, p. 1.

( 40 ) European Parliament Written question E-259/95 by Jean-Pierre Raffarin; in its reply, the Council listed a number of provisions of Community law ‘in line with the Honourable Member's suggestion’ (OJ 1995 C 213, p. 9).

( 41 ) Case 40/82 [1984] ECR283.

( 42 ) Case 252/85 [1988] ECR 2243, paragraph 15 of the judgment.