Opinion of Mr Advocate General Vilaça delivered on 4 February 1988. - Commission of the European Communities v French Republic. - Failure to comply with a directive - Conservation of wild birds. - Case 252/85.



European Court reports 1988 Page 02243



Opinion of the Advocate-General

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Mr President,

Members of the Court,

This is the fifth case in which the Court is asked to consider whether the legislation of a Member State complies with Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds . ( 1 )

On this occasion, it is the legislation of the French Republic which the Commission claims is not in conformity with the directive .

Curiously, this was the first of the actions instituted by the Commission for failure to comply with Directive 79/409; the hearing, which had been fixed for July 1986, was postponed until December 1987 at the joint request of the parties, since the French authorities were expected to adopt the provisions needed to comply with the directive . Various amendments to the French legislation were in fact subsequently introduced .

The Commission did not, however, discontinue the action, although it did acknowledge at the hearing that some of the complaints set out in the application had become devoid of purpose .

The Court has consistently held that, where a directive is implemented late, that is to say after the end of the period fixed in the reasoned opinion, the breach is not remedied and there is still an interest in obtaining a judgment of the Court to that effect : ( 2 ) the

Commission is presumed to have an interest in bringing an action whenever a Member State does not fulfil its obligations within the prescribed period . ( 3 )

Under those circumstances - and with the exception of the complaints in respect of which the Commission has discontinued its action - the examination of the conformity of domestic law with the directive must take into account the legislation in force at the time when the reasoned opinion was delivered and at the date when the application was lodged, once the scope of the dispute has been defined . ( 4 )

Of the six complaints made in the application, the Commission has recognized that the one concerning the hunting of turtle doves in the Médoc region ( fifth complaint ) has become devoid of purpose, since a judgment of the French conseil d' état of December 1984 annulled the Ministerial Decree authorizing such hunting on the ground that it was contrary to the directive . As a result, permits for the hunting of those birds could no longer be granted .

The Commission has also recognized that the complaint concerning the list of birds which may be hunted ( fourth complaint ) is now devoid of purpose, since the Ministerial Decree of 12 June 1979 was repealed and replaced by Ministerial Decree of 26 June 1987, which contains a list of species of birds which may be hunted, drawn up in accordance with Article 7 and Annex II to the directive . The text of the latter decree was submitted to the Court by the representative of the French Government at the hearing .

The Commission' s original complaint concerned the six species referred to in the Ministerial Decree of 1979 whose destruction was authorized because they were were capable of damaging crops - rooks, crows, starlings, jays, magpies and jackdaws . In its defence, the French Government maintained that the derogations from the directive in respect of such species had been communicated to the Commission by letter of 26 Augut 1981 and were justified by the third indent of Article 9 ( 1 ) ( a ) of the directive .

Subsequently, the species in question were removed from the list of birds which may be hunted by Decree of 26 June 1987, and the question whether or not derogations from the directive will henceforth be permissible ( on the basis of the third indent of Article 9 ( 1 ) ( a )) will, as far as such birds are concerned, depend on the specific scope of the derogations requested . It is not, however, logical to consider whether they are permissible in the framework of this action, since they must first be the subject of consultations with the Commission, as required by Article 9 ( 3 ) and ( 4 ) of the directive .

I shall therefore now consider the remaining complaints, retaining the numbering employed in the application .

First complaint - Protection of nests and eggs

Article 5 ( b ) and ( c ) of the directive provide for the protection of the nests and eggs of all the species of birds referred to in Article 1 .

( a ) However, the French legislation - namely Articles 372 ( 10 ) and 374 ( 4 ) of the code rural - provides, so far as game birds are concerned, only for the protection of eggs and nests during the close season . According to the Commission it is therefore not in conformity with the directive, which requires the protection in question to be guaranteed throughout the year .

France contends that that is a purely formal objection, since birds do not nest during the hunting season; the result intended by the directive is therefore entirely achieved by the French legislation . In support of its view the defendant states ( in the rejoinder ) that the ministerial decrees which fix the dates on which the hunting season is to open and close result in the season "traditionally" opening no earlier than the first Sunday in September and closing no later than 28 February . This ensures that the period in which restrictions apply coincides with the nesting and reproduction season .

However, the French legislation does not appear fully to ensure the attainment of the objectives laid down in Article 5 ( b ) and

( c ) of the directive .

In the first place, as the Commission has pointed out, the suspension of the protection of nests during the hunting season reflects a failure to recognize that such protection is necessary even at times other than the reproduction period . There are in fact birds ( in particular among the migratory species ) which re-use nests built in previous years . By not protecting nests throughout the year, the French legislation therefore fails to comply with the requirements laid down in Article 5 ( b ) of the directive .

Secondly, the Ministerial Decrees that fix the dates on which the hunting season is to open and close for the various regions and species of bird do not fully guarantee that the hunting season and the nesting season cannot overlap . Moreover, the French Government' s assertion in that connection gives no guarantee that the hunting season will always be between the first Sunday in September and 28 February; it merely states that that is "traditionally" the case . Thus the French Government relies on a "tradition", which has no binding force and does not guarantee that the hunting season can never coincide with the nesting season . An example of this is the case of the hunting of turtle-doves in the Gironde which, until the judgment of the conseil d' état of 7 December 1984, was permitted in May by the Decree of 20 April 1982, that is to say during the reproduction period of those birds .

Thus, by not protecting nests and eggs throughout the year and not ensuring that the hunting season never opens during any period in which any of the species of birds is reproducing, the French legislation does not fully implement the provisions of Article 5 ( b ) and ( c ) of the directive .

( b ) As regards the other species of non-domesticated birds to which the decree of 17 April 1981 refers, the Commission considers that, although the protection which that decree provides is not limited in time, it does not cover all species of naturally occurring birds in the wild state in the European territory of the Member States, as is required by Article 1 of the directive, to which Article 5 ( 1 ) refers .

As examples of species not covered by the prohibition on the destruction of nests and eggs, the Commission mentions those referred to in Articles 2 and 3 of the aforesaid decree .

The Commission is incorrect so far as Article 3 is concerned, since it was repealed by Article 5 of the Decree of 20 December 1983 .

Article 2 refers to the herring gull ( larus argentatus ) and the black-headed gull ( larus ridibundus ), in respect of which a derogation was requested by letter of 28 July ( or 26 August ?) 1981, pursuant to Article 9 ( 1 ) ( a ) of the directive, in the light of the threat which the proliferation of such birds posed to mussel-farming, to certain species of sea-birds and to air safety, reasons which are still valid today .

The French Government stated at the hearing that such derogations are granted on a case-by-case basis by the Minister for the Environment and apply to specific limited numbers of nests and eggs . Under those circumstances, the exceptional and limited nature of the derogations and the reasons for which they are granted in principle enables them to be regarding as falling within the scope of Article 9 ( 1 ) ( a ) of the directive .

The fact remains, however, that the protection of nests and eggs provided for in the Decree of 17 April 1981 does not cover all species of naturally occurring birds in the wild state in the European territory of the Member States . The list submitted by the Commission on 31 May 1986 at the request of the Court includes various species of birds which, although not expressly excluded ( like those mentioned in Articles 2 and 3 ) from the protection provided by the Decree of 17 April 1981, nevertheless do not appear in the list contained in Article 1 thereof .

I shall examine that argument in greater detail in connection with the following complaint .

In view of my conclusion concerning that complaint, together with the considerations which I have just put forward, the second limb of the first complaint may also be regarded as well founded .

Second complaint - Scope of the protection

As I have already stated, the directive protects all species of naturally occurring birds in the wild state in the European territory of the Member States .

However, the protection under Article 3 of Law No 76-629 of 10 July 1976 is limited to cases where the need for it is justified by a particular scientific interest or by a concern to preserve the national biological heritage . In the Commission' s opinion, the concept of damage to the "national biological heritage" is too restrictive to be compatible with the directive, since the latter covers what could be described as the "European biological heritage ". Contrary to the requirements of the directive, the French legislation does not protect, in particular, migratory species of other Member States which may at any given moment be found within French territory .

Although the Decree of 17 April 1981, adopted pursuant to the law in question, extends the concept of national biological heritage to numerous species which do not nest in France and thus embraces migratory species, the fact remains that protection is not afforded to all the species covered by the directive, and therefore to that extent does not comply with the directive .

In fact, as has been stated by the Commission, it would be difficult for the system adopted by the French legislation, whereby the protected species are expressly listed, to include all the species referred to by Article 1 of the directive . Such a system inevitably runs the risk of being too restrictive . As I stated in my Opinion in Case 247/85 ( ECR 3028 ), a list does not provide "an absolutely infallible guarantee as to the number of species recorded, nor can it keep up with the changes which occur in bird populations and in their migration routes ".

This seems to be shown by the list of species produced by the Commission, to which I referred in connection with the previous complaint . At the hearing, the agent for the French Government stated that some of the species listed do not live in France or migrate to France and that the remainder are covered in France by the rules for the protection of wildlife . However, the Court has already held that the protection afforded by the directive also covers species of naturally occurring birds in the wild state in the European territory of another Member State which are not naturally or usually to be found in the territory of the Member State in question but are transported there, held or marketed there, whether alive or dead . ( 5 ) The French legislation does not extend to such birds the protection provided by the directive, and therefore the second complaint must be regarded as well founded .

Third complaint - The keeping of birds

Law No 76-629 does not expressly prohibit the keeping of species of birds the hunting and capture of which is prohibited, and thus, according to the Commission, it is not in conformity with Article 5 ( e ) of the directive . The law merely requires authorization to be obtained for the keeping of non-domesticated species of animals ( Article 5 ) and lays down the conditions to be applied thereto in Articles 6 and 10 .

The French Government contends, however, that the domestic legislation enables the objectives of the directive to be attained .

It is true that the combined effect of the prohibitions contained in Article 1 of the Decree of 17 April 1981 - preventing in particular the capture and removal of the birds listed therein and of their eggs, and their transport, use, sale or purchase - results in a prohibition of the keeping of the species protected thereby .

Nevertheless, once again the question remains whether the protection afforded by the decree is wide enough . Since it does not protect all of the species covered by the directive, the decree cannot comply with it : to enable it to do so, the prohibition of the keeping of birds would have to be extended to those species which, though not covered by the decree, are protected by the directive ( see the analysis of the second complaint ). Moreover, the French Government appears by implication to acknowledge the deficiency in its defence .

Sixth complaint - The use of limes and nets for capture

For the reasons which I set out at the beginning of my Opinion, I shall not, in examining this complaint, deal with the Ministerial Decrees of 1 September 1987 by which the French Government sought to regularize the traditional methods of hunting . I shall thus confine myself to examining the conformity with the directive of the French legislation referred to in the application, namely the Ministerial Decree of 27 July 1982 and the Ministerial Decrees of 7 September and 15 October 1982 .

Those decrees authorize the use of limes for the capture of thrushes and the use of nets for the capture of skylarks . Such methods of capture are expressly prohibited by Article 8 and by part ( a ) of Annex IV to the directive on the ground that such methods are, by their nature, non-selective .

By letter of 25 May 1983, France notified the Commission that it was derogating from Articles 7 and 8 of the directive in respect of such methods of capture, as permitted by Article 9 ( 1 ) ( c ) of the directive which, in its view, covered the survival of traditional methods of hunting .

It must first be said in response to that argument that the ground relied upon can only be covered by Article 9 ( 1 ) ( c ) if it can be considered as constituting a "judicious use" of the birds in question . ( 6 ) In that regard, the relevant French legislation seems to limit the capture of birds to those which are intended to be used as decoys; the French Government also invoked social reasons connected with the advanced age of the traditional practitioners of such hunting methods, claiming that the preservation of such methods would also contribute to discouraging people from leaving the countryside .

However, in order to ensure that today' s ecological requirements are complied with, the practice of such traditional methods must, if in fact it is covered by Article 9 ( 1 ) ( c ), satisfy the conditions expressly laid down in that provision .

In particular, the activity in question must be carried out under strictly supervised conditions and on a selective basis and must be restricted to small numbers of birds .

It seems to me that the French Government has adequately explained ( chiefly in its defence ) that the conditions laid down by the legislation in question are sufficiently strict and provide sufficient supervision of the use of the hunting methods concerned in this complaint .

None the less, if the derogations are to be permitted, the methods of capture used must also be selective . The use of limes and of nets is expressly prohibited in Article 8 and part ( a ) of Annex IV, precisely because it is non-selective, in view of the risks that other species of birds will be captured . The fact that the French legislation requires birds belonging to other species to be set free does not alter the nature of the operation carried out by the use of such methods, and, as the Commission has pointed out, the fact remains that such a method is likely to injure, mutilate or kill birds of any species .

Furthermore, not only must the capture be selective but the birds must also be captured in small numbers . France seems to consider that this condition is satisfied if the percentage of birds captured is small in relation to the total number of such birds . However, notwithstanding the estimates provided by the French Government, the French legislation in question is not capable of guaranteeing that in the future there will not be intensive hunting of such birds ( even if the fact is taken into account that they may be used only as decoys ) and that the percentages recorded up to now will not increase substantially . In fact the decrees in question do not contain any restriction on the number of birds which may be captured by each user of the methods in question, so that there is no guarantee that the total number of birds captured will be small; that is sufficient reason for considering that the decrees do not satisfy the conditions for derogations laid down in Article 9 of the directive .

Consequently, by permitting the use of limes and nets, as described above, the French legislation at issue does not comply with the directive .

On those grounds, I propose that the Court should declare that the French Republic has failed to adopt, within the prescribed period, the provisions needed to implement all the obligations arising out of Council Directive 79/409/EEC of 2 April 1979 and that it has thereby failed to fulfil one of its obligations under the EEC Treaty .

Since the French Republic has in the main failed in its submissions, and since its own conduct gave rise to the fourth and fifth complaints and, subsequently, enabled them to be regarded as devoid of purpose, it should be ordered to pay the costs .

(*) Translated from the Portuguese .

( 1 ) Official Journal 1979 L 103, p . 1 .

( 2 ) Judgments of 7 February 1973 in Case 39/72 Commission v Italian Republic (( 1973 )) ECR 101; of 20 February 1986 in Case 309/84 Commission v Italian Republic (( 1986 )) ECR 599; of 5 June 1986 in Case 103/84 Commission v Italian Republic (( 1986 )) ECR 1759; and of 17 June 1987 in Case 154/85 Commission v Italian Republic (( 1987 )) ECR 2717 .

( 3 ) Judgment of 19 December 1961 in Case 7/61, Commission v Italy, (( 1961 )) ECR 317 .

( 4 ) Judgment of 27 May 1981 in Joined Cases 142 and 143/80 Amministrazione delle finanze dello Stato v Essevi and Salengo (( 1981 ) ECR 1413; judgment of 13 October 1987 in Case 236/85 Commission v The Netherlands, (( 1987 )) ECR 3989, at paragraph 28 .

( 5 ) Judgment of 8 July 1987 in Case 247/85 Commission v Kingdom of Belgium (( 1987 )) ECR 3029, at paragraph 22 .

( 6 ) It should be pointed out, however, that the Court has already stated that reasons of local interest are not included in any of the grounds for derogation laid down in Article 9 ( 1 ) of the directive ( Judgment of 8 July 1987 Commission v Kingdom of Belgium cited above, at paragraph 58 ).