Opinion of Mr Advocate General Vilaça delivered on 2 December 1986. - Commission of the European Communities v Kingdom of Belgium. - Failure to comply with a directive - Conservation of wild birds. - Case 247/85.



European Court reports 1987 Page 03029



Opinion of the Advocate-General

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Mr President,

Members of the Court,

The Kingdom of Belgium is the subject of an action by the Commission for infringement of the provisions of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds .

1 . The purpose of the directive is, according to Article 1 ( 1 ) thereof, the "conservation of all species of naturally occurring birds in the wild state in the European territory of the Member States" and it applies, according to Article 1 ( 2 ), to birds, their eggs, nests and habitats .

The directive was adopted on the basis of the finding that a large number of species of wild birds are declining in number, very rapidly in some cases, constituting a serious threat to the conservation of the natural environment and the maintenance of biological balances, with the result that conservation measures must be taken which are applicable to the various factors which may affect the numbers of birds . Above all, the most serious repercussions of some of man' s activities, in particular the destruction and pollution of their habitats, capture and killing by man and trade resulting from such practices, must be prevented . ( 1 )

The general aim of conservation is the long-term protection and management of natural resources as an integral part of the heritage of the peoples of Europe ( eighth recital in the preamble ) which entails in particular the preservation, maintenance or re-establishment of a sufficient diversity and area of habitats ( Article 3 ) and involves the adoption of special conservation measures for certain species, particularly migratory species ( Article 4 ).

The directive accordingly lays down a series of prohibitions which the Member States must apply within a general system of protection for the bird species concerned . Those prohibitions relate inter alia to killing or capturing birds, keeping, transporting or marketing them, destroying, damaging or taking their eggs and nests, and deliberately disturbing them, particularly during the period of breeding and rearing ( Articles 5 and 6 ).

However, they are not strict prohibitions . The directive is concerned essentially with achieving "natural balances between species as far as is reasonably possible" ( eighth recital ), recommending that the stringency of the conservation measures should be adapted "to the particular situation of the various species" ( seventh recital ) and to the "specific conditions obtaining in the different regions" ( tenth recital ) and allowing certain kinds of "acceptable exploitation" of certain species, which are "compatible with maintenance of the population of these species at a satisfactory level" ( eleventh recital ).

For that reason Article 2, which is intended to deal with all those various concerns, provides that the conservation measures to be adopted by the Member States are to be "at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements ".

We shall see in due course that such a balance is not easy to achieve and that the legal effect of Article 2 has not been established beyond doubt .

Be that as it may, in the light of those considerations, the directive provides that, having regard to their population level, their geographical distribution and the rate at which they breed, certain species of birds may be hunted ( Article 7 ), subject to certain conditions ( Article 7 ( 4 )*), except by the use of certain means, arrangements and methods or certain modes of transport ( Article 8 ). Similarly, the directive allows, by way of derogation from the general prohibition, the marketing of certain species where their biological status permits it ( Article 6 ( 2 ) ( 3 ) and ( 4 )*).

In view of "the importance which may be attached to certain specific situations", the directive also makes provision for the possibility of derogations from the general rules in Articles 5 to 8, on certain conditions and subject to supervision by the Commission ( Article*9 ).

As we shall see, one of the principal problems of interpretation raised by the application of Directive 79/409 lies in determining the scope of the derogations provided for by Article 9 .

The directive also contains provisions concerning support for research by the Member States ( Article 10 ), the introduction of species which do not occur naturally in the wild state ( Article 11 ), the application of implementing measures, which must not lead to deterioration in the present situation ( Article 13 ), the adoption by the Member States of stricter protective measures ( Article 14 ), and the establishment of a committee for the adaptation of the directive to technical and scientific progress ( Articles 15, 16 and 17 ).

In order to supervise the implementation of the provisions of the directive, Articles 9 ( 3 ) and 12 impose an obligation on the Member States to forward reports to the Commission . Under Article 9 ( 3 ) they are to send a report to the Commission each year, whilst under Article 12 they are to forward a report every three years on the implementation of national provisions adopted under the directive, which the Commission is to take as a basis for its own composite report .

2 . The Belgian legislation relating to the subject-matter of the directive consists of a series of national and regional measures, the most important of which are set out below :

( a ) The Law on hunting of 28 February 1882 . ( 2 ) This is a kind of framework law which specifically enumerates and classifies in four categories the animals which may be hunted . It provides that the Minister for Agriculture is to fix each year the dates on which hunting may begin and on which it is to end; hunting at any other times is prohibited, subject to certain exceptions for owners, persons in possession of land and tenants . It lays down certain general prohibitions relating to the taking, destruction, sale, offering for sale, purchase and transport of eggs or broods of certain bird species, which are classified as game, or relating to the use of certain hunting methods . It contains certain provisions of a penal nature and empowers the Minister for Agriculture to make certain exceptions .

( b ) The Royal Decrees of 20 July 1972 and 9 September 1981 . The former decree applies to the Walloon and Brussels regions, whilst the latter applies to the Flemish region .

The royal decrees, which apply to all bird species found in the Benelux countries or within the European territory of the Member States ( Regional Decree of 20 November 1985 ) but not listed in Article 1 bis of the law on hunting, extend or lay down more detailed provisions concerning the prohibition of certain practices relating to such birds and their eggs, nests, broods and feathers, subject however to a number of exceptions and derogations . The Minister for Agriculture may also grant certain temporary derogations from the provisions of those royal decrees, under the conditions and for the purposes laid down therein .

3 . As is stated in the Report for the Hearing, the parties' arguments are of two kinds : first, arguments of a general nature involving in particular the interpretation of certain general concepts in the directive; secondly, arguments which focus on each of the Commission' s various specific complaints concerning the Belgian legislation .

In the first set of arguments, the questions at issue are, first of all, the determination of the precise meaning and scope of Article 2 of the directive ( and of the various "requirements" set out therein ), and secondly the nature and scope of the derogations in Article 9 of the directive, in addition to the meaning of expressions such as "small numbers" and "serious damage ".

In substance, the dispute arises from a difference of opinion concerning the manner of transposing the directive into Belgian national law, particularly as regards the question whether or not the national legislation must take over the precise wording of the derogations in the directive for the purpose of defining or directing ( even by reference to imprecise concepts ) the exercise of the discretionary power conferred on the administrative authorities .

Ultimately, the problems raised by the implementation of Community directives on the part of the Member States are interwoven at both of the stages at which most of those problems arise, namely the legislative stage ( transposition ) and the administrative stage ( implementation ).

The question is of course more complex in the case of a State with regional institutions which share the power to legislate with the central authorities and enjoy, in certain areas, broad powers to adopt regulations, and powers of enforcement .

In this case, the Court is faced with the problems raised by the application of a directive which was adopted on the basis of Article 235 of the EEC Treaty in order to serve as the cornerstone of the European Communities' policy and action programme on the environment . ( 3 )

At the time, this was still a comparatively recent field of intervention which was aimed at achieving the objectives of a European common market and in which there was a great deal of activity .

Those circumstances have no doubt left their mark on the scheme of the directive, which contains both detailed framework provisions and vague expressions which are difficult to define .

Owing to that factor, and also to the nature of the subject-matter, the specific features of the Belgian legislation and even the difficulties which arose in establishing certain facts during the preliminary inquiry, consideration of the legal problems raised turns at times into a veritable charade .

The attainment of the objectives of a directive of that kind, and in a field of the kind described, inevitably presupposes close cooperation between the Commission and the Member States not only with regard to the application of the rules in question but also, at an even earlier stage, when changes are made to national law .

In that regard I must refer to the Commission' s complaint that it did not receive at regular intervals from the Belgian Government the reports on the implementation of the directive provided for by Articles 9 ( 3 ) and 12 ( 1 ); that in itself constitutes an infringement of the directive and thus can only give rise to adverse consequences as regards consideration of the procedure for implementing the directive and ensuring the achievement of the objectives of Community policy in this area .

On the other hand, there is no evidence of any improper conduct on the part of the Commission during the procedure followed before the action was brought . The reasoned opinion delivered on 20 February 1985 by the Commission was properly preceded, a year earlier ( on 22 February 1984 ), by notice to the Belgian Government that it had failed to fulfil its obligations, and, in the light of the observations submitted by Belgium in response to that reasoned opinion ( on 9 July 1984 ), the Commission retained only some of the complaints contained in that document .

Since the procedure provided for in Article 169 of the EEC Treaty was duly followed, the Belgian Government' s contention that the Commission failed to approach the competent Belgian authorities before instituting proceedings is irrelevant .

I now turn to each of the specific complaints formulated by the Commission against the Kingdom of Belgium in order to determine whether they are well founded .

I shall answer the general questions raised by the parties in connection with each of those complaints .

4 . The Commission considers that the Belgian legislation is out of line with Directive 79/409 on eight points .

First complaint : Article 1 bis of the law on hunting

Article 1 bis ( b ), ( c ) and ( d ) of the Law on hunting of 28 February 1882 classifies as game 13 species which are not listed in Annex II to the directive and which, by virtue of Article 7, may not therefore be hunted . According to the Commission, the fact that those species may be hunted, under Article 1 of the Law, only if the annual decree laying down the opening and closing dates of the hunting season so provides does not justify the absence of a general prohibition on hunting the species in question .

I also consider that achievement of the objective pursued by the directive, namely conservation of the species in question by protecting them from hunters, is not effectively guaranteed by the relevant provision of Belgian law, notwithstanding the fact that it does not grant express authorization to hunt but - in formal terms - merely treats those species as game and classifies them in various groups .

In the first place, it must be pointed out that Article 5 of the directive contains a general rule which imposes on all the Member States an obligation to take the necessary protective measures including, in particular, measures prohibiting the deliberate killing or capture by any method of any of the species of birds referred to in Article 1 . Article 7, as is clear from the wording of Article 5, constitutes an exception to that general rule by laying down that only the species listed in Annex II may be hunted in certain circumstances .

The Belgian legislation not only fails to impose an express prohibition on hunting, but it is also drafted in terms that are, to say the least, equivocal in so far as it classifies as "game" certain species which, under the directive, may not be hunted .

Admittedly, it is for the administrative authorities to decide whether

or not to authorize each year the hunting of those species, since it does not necessarily follow from Article 1 bis that hunting of all the species referred to in that article will be permitted .

It must quite simply be borne in mind - in conformity with the interpretation put forward on this point by the Commission at the hearing - that in substance Article 1 bis defines the scope of the law on hunting by indicating the species which may come within the scope of its provisions .

The combined effect of Article 1 bis and Article 1 is, in fact, that the species referred to in Article 1 bis may be hunted as soon as the competent authorities say so .

In the terms in which it is drafted, the Belgian legislation confers on the administrative authorities a discretion which enables them to issue decrees which are in conformity with the law on hunting but not with the Community directive .

That has actually happened in practice . The Commission refers to several annual decrees which were adopted in various regions by the competent authorities and which effectively infringed the prohibition in the directive by authorizing the hunting of blackbirds, jackdaws and magpies - species which are not listed in Annex II to the directive - even though the conditions for granting the derogations provided for in Article 9 were not fulfilled .

That would appear to indicate that compliance with the provisions of the directive would be ensured only if the law on hunting excluded the possibility of enacting implementing decrees authorizing the hunting of the species not included in Annex II .

The Court has already held on several occasions that the maintenance by a Member State of legislation which is contrary to Community law constitues a failure by that State to fulfil its obligations inasmuch as it gives rise to an ambiguous state of affairs and a state of uncertainty as to the rights of the persons affected by it, even where the competent authorities have given directions waiving the application of the national law . ( 4 )

Even though the two situations are not wholly comparable, I believe that the same conclusion must be drawn where there is a state of uncertainty as to whether the obligations imposed by a Community directive on the administrative authorities of a Member State and, ultimately, on individuals have been fulfilled and where that uncertainty is the result not so much of a basic contradiction in the wording of the provisions concerned but of omissions and methods of formulation which broaden the scope of the national legislation unduly .

For similar reasons, the Court has held, on other occasions, that each Member State should implement directives in a way which fully meets the requirements of clarity and certainty in legal situations which directives pursue . ( 5 )

As we have seen, the Belgian Regional Executives have adopted on the basis of the Belgian legislation decrees laying down the opening and closing dates of the hunting season in breach of Article 7 of the directive . That is a sufficient reason for charging the Kingdom of Belgium - which is responsible for the acts and omissions of all its competent constitutional bodies and institutions ( 6 ) - with a failure to fulfil its obligations which can in fact be traced back to the provisions of Articles 1 and 1 bis of the Law of 28 February 1882 .

Article 1 of the Royal Decree of 20 July 1972, and the same article of the Royal Decree of 9 September 1981, which expressly exclude from the scope of the protection afforded by those decrees the bird species regarded as game and listed in Article 1 bis of the 1882 Law, are also vitiated by the Belgian Government' s breach of its obligations .

In addition, the Belgian system of issuing annual decrees makes it difficult, and at times even impossible as the Commission points out, to monitor the proper transposition of the provisions of the directive into national law .

Frequently the annual decrees are published immediately before the opening of the hunting season and are only notified to the Commission much later, thereby preventing adequate preliminary checks and enabling only ineffective checks to be carried out subsequently ( in its reply the Commission refers to a flagrant example of this practice ).

In my view, the Belgian Government' s argument to the effect that the Commission has itself recognized ( Council Doc . 4643/79, ENV 20 AGRI 37 ) that the opening of the hunting season constitutes a legitimate regulatory measure as provided for in Article 9 of the directive carries no weight . In reality, the Commission' s statement can only mean that the derogations may be relied upon for the purposes of the annual decrees laying down the date for the opening of the hunting season, provided of course that those decrees fulfil the conditions laid down in Article 9 .

Nor, finally, does the situation concerning the implementation of Article 7 and Annex II to the directive appear, for the time being, to have been altered by the Decree of 27 June 1985, relied upon by the Belgian Government in its rejoinder, which amended the law on hunting as regards the Flemish region . The decree does not amend Articles 1 or 1 bis of that Law and merely creates the legal basis for the adoption, in the future, by the Flemish Regional Executive, of amending measures for implementing the overriding provisions of Community law .

In conclusion, I consider that Article 1 bis of the Belgian law on hunting, even if read in conjunction with Article 1 thereof, is not in conformity with the provisions of Article 7 of Directive 79/409 and Annex II thereto .

Second complaint : Article 1 of the Royal Decrees of 20 July 1972 and 9 September 1981

Article 1 of the Royal Decree of 20 July 1972, which is applicable to the Brussels and Walloon regions, and Article 1 of the Royal Decree of 9 September 1981, which is applicable to the Flemish region, afford protection only to birds living in the wild in the Benelux countries, whereas the directive extends its protection to all species of naturally occurring birds in the wild state in the European territory of the Member States .

However, since the Regional Executive of the Flemish region has published a decree ( 7 ) amending Article 1 of the Royal Decree of 9 September 1981 in order to bring it wholly into line with the directive, the Commission stated at the hearing that although that decree was adopted only after these proceedings were instituted, it was limiting its complaint to Article 1 of the Royal Decree of 1972 .

The Belgian authorities use as a reference work for determining which species are protected the Avifaune de Belgique, which mentions almost all the species of birds to which the directive applies . In view of the fact that the Commission has not produced a complete list of bird species found in the Member States ( Belgium would be prepared to take such a list into account if one were produced ) the Belgian Government takes the view that, since its only responsibility is to protect the species found on its territory, there is really no reason to amend the list which it has adopted .

In my view, however, the Belgian Government' s argument is illogical .

If the directive is to be properly implemented, Belgian law must extend its protection to "all species of naturally occurring birds in the wild state in the European Member States to which the Treaty applies", as required by Article 1 . Those are the species covered by the directive and any legal definition which is more restrictive in scope does not provide adequate protection . The Member States have at their disposal practical and legal means for achieving the objectives of the directive even in relation to birds not usually found within their territory, since it is clear that the directive prohibits not only the hunting but also the transport and marketing of such birds .

However, 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 .

For that reason, national legislation must ( subject to the exceptions lawfully granted ) formulate in precise and sufficiently broad terms the scope of the protection guaranteed, so as to incorporate in full the machinery for the protection of birds provided for in the directive .

Moreover, the Flemish region seems to have recognized the soundness of that argument and has amended Article 1 of the Royal Decree of 9 September 1981 by a Decree of 20 November 1985, thereby bringing the protection of wild birds in that region wholly into line with the directive, as we have seen .

It must therefore be concluded that since no measures of that kind have been adopted by the Brussels and Walloon regions, they have not properly transposed the provisions of Article 1 of the directive into national law, and mere declarations of their intention to make the necessary amendments are irrelevant .

Third complaint : The second paragraph of Article 3 of the Royal Decrees of 20 July 1972 and 9 September 1981

That provision, which allows nests built against houses and adjoining buildings to be disturbed, removed or destroyed, is, according to the Commission, contrary to Article 5 ( 3 ) of the directive .

The Belgian Government, however, takes the view that the derogation is justified in the light of Article 9 ( 1 ) ( a ) of the directive, that is to say it is in the interests of public health and safety .

It is necessary to ascertain whether the contested provision of the Belgian legislation falls within the exception provided for by Article 9 of the directive .

In my view, the power to derogate contained in Article 9 is of an exceptional nature and a restrictive interpretation must be adopted regarding recourse to it . That is the only way to prevent the system of protection established by the directive from being nullified .

Article 9 therefore specifies the purposes for which derogations may be adopted and, in harmony with the principle of proportionality, makes the absence of any other satisfactory solution a precondition for their adoption, with the result that the derogations are limited to what is strictly necessary having regard to their purpose .

However, the formal requirements laid down in Article 9 ( 2 ) of the directive must also be satisfied .

An analysis of those conditions shows beyond doubt that derogations may not be of a general, comprehensive and unrestricted nature but must, on the contrary, indicate precise limits as regards the species concerned and the circumstances of time and place in which they may be granted . That is apparent from the thirteenth recital in the preamble which justifies the provision for derogations by the "importance which may be attached to certain specific situations ". ( 8 )

For that reason Article 9 requires derogations not only to state the species concerned and the conditions for their application, but also to indicate the controls to be carried out and the authority empowered to declare that the required conditions obtain and to decide what means, arrangements, or methods may be used in practice, within what limits and by whom .

That being so, it is clear that Article 3 of the royal decrees in question does not fulfil the requirements laid down in Article 9 of the directive for a derogation to be allowed .

That is not to say that in practice circumstances will never arise in which the building of nests in chimneys or pipes or on telephone cables, for instance, may pose a threat to public safety . Similarly, there may be individual cases in which public health is endangered by the presence of nests in buildings used by the food industry . Article 9 of the directive provides for the possibility of derogations only in specific situations of that kind and under properly supervised conditions .

However, the permissive nature of Article 3 of each of the contested decrees, resulting from the general scope thereof, clearly goes beyond those specific instances, since that provision may apply to innumerable situations in which there is no threat to public health or public safety .

In those circumstances, the second paragraph of Article 3 of the royal decrees does not fulfil the conditions for granting derogations under Article 9 and is therefore in breach of the prohibition laid down in Article 5 ( b ) of the directive .

Fourth complaint : Articles 4 and 6 of the royal decrees

Articles 4 and 6 of the two royal decrees permit owners of land and holders of a hunting licence, and certain other bodies, to capture, kill, destroy or frighten house sparrows, mountain sparrows and starlings and to destroy their eggs, nests and broods . Those provisions also authorize the transport and sale of such birds, and of their eggs and broods . For that reason, and in view of the fact that, according to the Commission, none of the conditions for derogations under Article 9 is fulfilled, Articles 4 and 6 of the decrees are in breach of Articles 5, 6 and 7 of the directive .

The Belgian Government justifies the adoption of the provisions at issue by referring to the serious damage caused by the species in question to crops and orchards and, in particular, the damage caused by starlings to cherry orchards in the eastern part of the country . Furthermore, as far as starlings are concerned, the derogation is quite justified on grounds of public health owing to the serious nuisance resulting from the pollution and noise for which that bird is responsible in many towns and on the coast .

We have already seen that the exceptional nature of the derogations permitted by Article 9 of the directive means that they must be couched in precise, clear and restrictive terms and must set out all the factors which, by virtue of Article 9 ( 2 ), make it possible to establish that the conditions for the exception and the scope thereof are fulfilled, so as to ensure that the derogations do not go beyond what is strictly necessary .

An essential concern underlying Article 9 is to limit the scope of the exceptions, either by a legal definition thereof or by supervision on the part of the national authorities and the Commission . In order to come within the scope of Article 9, the derogations must therefore be worded and applied in a manner that facilitates rather than impairs such supervision .

The general wording of Articles 4 and 6 of the royal decrees does not meet that concern .

In particular, the absence of any limitation as to time and place must be accompanied by evidence that the bird species in question always cause serious damage to crops throughout Belgian territory .

The Belgian authorities have not furnished such evidence, as they should have done pursuant to the rules concerning the onus of proof, in so far as they seek to rely on a derogation which is particularly favourable to them .

Moreover, the Belgian Government itself actually recognizes that the harm caused by starlings to cherry trees is confined to the eastern part of the country and that they are responsible for pollution and noise in many towns and on the coast . That cannot justify a derogation which is so general in scope that it can be applied at any time, in every town and throughout the national territory .

Hence there is a manifest disproportion between the extent of possible damage and the scope of the exception permitted by the Belgian legislation . The wording of the legislation does not ensure that the scope of the exception coincides with that of the grounds relied upon .

The terms in which it is couched preclude supervision by the Commission, with the result that the general principle of proportionality cannot be relied upon to justify the contention that the lawful activities of the national authorities are being impaired, thereby making normal fruit-growing impossible .

I therefore conclude that, as the Commission maintains, Articles 4 and 6 of the Royal Decrees of 20 July 1972 and 9 September 1981 are not in conformity with the provisions of Articles 5, 6 and 7 of Directive 79/409 .

Fifth complaint : Article 6 ( 1 ) of the royal decrees

The Commission maintains that the list of bird species which, according to Annexes 1 and 2 to the Royal Decrees of 20 July 1972 and 9 September 1981, may be kept or exchanged under Article 6 ( 1 ) does not correspond with the provisions of Article 6 and Annex III to the directive . None of the species mentioned in the annexes to those decrees is actually listed in the directive .

Here too the question is essentially whether the terms in which the Belgian legislation is couched meet the conditions for the application of any of the derogations provided for by Article 9 of the directive, and in particular by Article 9 ( 1 ) ( c ) which lays down that the Member States may derogate from Articles 5, 6, 7 and 8 "where there is no other satisfactory solution ... (( in order )) to permit, under strictly supervised conditions and on a selective basis, the capture, keeping or other judicious use of certain birds in small numbers ".

As I pointed out earlier, the vague and imprecise nature of certain concepts used in the directive makes it difficult to determine their precise meaning and to define their scope .

That applies to the expression "small numbers", the interpretation of which has aroused lively controversy between the parties to these proceedings .

In that regard it must be said that the Belgian Government' s contention that the Commission is guilty of misuse of its powers by seeking to impose its own interpretation is devoid of substance . The Commission has not only the right but also the duty to defend its interpretation of the provisions of Community law, by virtue of the powers conferred upon it by Article 155 of the EEC Treaty for ensuring compliance with the obligations arising under the Treaty . It would be quite another matter if the Commission were to argue that it was entitled to lay down the authentic interpretation of the provisions of Community law . The Commission is entitled to interpret directives on the same terms as the Member States, but it is for the Court of Justice, in the event of a disagreement followed by litigation, to determine what interpretation is to be adopted .

That being so, how is the compatibility of the contested provision of the aforesaid royal decrees with the directive, and in particular with the provision for exception, contained in Article 9 thereof, to be appraised?

I believe this question must be answered in the light of the general protective purposes of the directive .

In that regard it may be said that the directive is designed to prevent the capture of birds in numbers so great as to endanger the survival of one or more species .

That is how the reference to the expression "small numbers" must be interpreted .

Contrary to what the Belgian Government seems to suggest in its reply, that expression does not, in my view, relate to the number of bird species which may be captured . That is clear from the wording of the final part of Article 9 ( 1 ) ( c ). It is the number of specimens which may be captured that must be determined, as that is the only way of ensuring compliance with that purpose of the directive .

The number of birds which may be captured must be assessed by reference to each species, on the basis of the total number of birds of that species and of their respective mortality and breeding rates .

The Belgian Government begins by informing the Court that, in the Flemish region, the number of bird species which may be captured has been limited to four and that the decision was also taken to repeal Annex 3 to the Royal Decree of 9 September 1981; that annex has in fact been repealed by the Decree of 20 November 1985 . In the Walloon region, the number of species was reduced from 28 to 16 on one of the lists . However, the Belgian Government adds that, in the various regions, limits have also been set to the number of specimens of each species which may be captured . In the Flemish region, the number is limited to approximately 25*000 birds and in the Walloon region to approximately 50*000 birds ( 12 marking rings for each of the bird catchers, of whom there are about 4*000 ), whilst in the Brussels region no more than about 100 birds may be captured; they are caught for scientific purposes only and are subsequently released . The total number of birds which may be captured every year in Belgian territory is therefore approximately 75*000 specimens of the species exhaustively listed . The Belgian Government does not specify the provision by reference to which the aforementioned maximum numbers are fixed . The provision concerned must be the decision of the relevant ministers adopted pursuant to Article 4 of the Ministerial Decree of 14 September 1981 and to Article 5 of the Regional Decree of 28 July 1982 .

The Commission does not challenge the figures given but takes the view that they are excessive, having regard to the actual purpose of capturing the birds which is above all - as is clear in particular from the Ministerial Decree of 14 September 1981 ( 9 ) - to permit bird rearers to top up their stocks regularly . Furthermore, the Commission considered that the number of birds ( 54*630 ) captured in Belgium was already excessive in 1981, that being the last year for which, at the time when proceedings were instituted, it had at its disposal information furnished by the defendant . Moreover, it would appear that in the Brussels region the original list of 28 species is about to be applied .

The Commission also goes on to state that other satisfactory solutions could be envisaged which would not involve removing the birds from their natural environment, as is clear from experiments carried out in other Member States where for decades there has been no right whatsoever to capture birds .

Even if in certain cases it were necessary to capture birds living in the wild in order to satisfy the requirements of bird breeders, the Commission considers that a small number of birds, in any event far fewer than the 75*000 referred to by the Belgian Government itself, would be quite sufficient .

If account were taken only of the Commission' s charges which are concisely set out above, it would be extremely difficult to regard the condition that birds may be captured "in small numbers", laid down in Article 9 ( 1 ) ( c ) of the directive, as having been infringed by the Belgian legislation .

The Commission itself acknowledged at the hearing that it had been "somewhat vague" in its references to the allegedly excessive number of birds .

The Commission explained that, in reaching its conclusion, it adopted a criterion based on the relationship between the authorized number of birds that may be captured and the mortality rate of the bird species in question in each region, also having regard to the number of eggs of each species .

However, although it stated that a maximum proportion of 2.5% would be appropriate, the Commission has not dispelled the uncertainty surrounding the meaning of that figure . Not only does not it not give sufficient reasons for selecting that rate whilst discarding all the other possibilities, but it also fails to indicate the precise figures which should result from its application . On the other hand, it concedes that it is impossible to state with certainty whether the number of birds which may be captured constitutes a threat to the survival of a given bird species, having regard to the question of the natural reproduction of the species .

However, there is a factor - albeit one of a residual nature - which leads me to the conclusion that the Commission is right in its complaint that the Belgian legislation does not comply with all the conditions for the application of the derogation in Article 9 ( 1 ) ( c ) of the directive, in particular as regards the concept of "small numbers ".

Whilst setting maximum limits for the number of birds which may be captured in each region, the Belgian authorities did so for the number of birds as a whole, without breaking down this number by species . That is virtually the only guidance given to us in these proceedings, and it has been furnished by the Belgian Government itself .

For that reason, the Commission is right to consider that this state of affairs could lead to very serious consequences as regards the survival of certain species . It is quite conceivable that certain bird species might be captured in excessively large numbers, within the overall quota of birds whose capture is authorized, whilst other species might be left practically untouched .

In other words, the provisions and administrative practices in force in Belgium fail to ensure that the protective purpose of Directive 79/409 is achieved in that regard .

Against that, it seems to me that the Belgian Government cannot rely on Article 2 of the directive in referring to cultural and recreational requirements . The fundamental purpose of Article 2 is to define the general thinking behind the directive, essentially by providing a basis for the various provisions of the directive, in particular Article 9 and the derogations provided for therein . That provision clearly reflects the concern inherent in the ecological requirements ( second and third indents of Article 9 ( 1 ) ( a ), Article 9 ( 1 ) ( b ) and Article 9 ( 2 )*), in the scientific and cultural requirements ( Article 9 ( 1 ) ( b ) and ( c )*), in the economic requirements ( third indent of Article 9 ( 1 ) ( a ) and Article 9 ( 1 ) ( b )*) and in the recreational requirements ( Article 9 ( 1 ) ( c )*). Accordingly, Article 2 in my view essentially contains guidance which the legislature imposed upon itself when adopting the directive .

I do not by any means rule out the possibility that Article 2 may also impose obligations upon the Member States with regard to the transposition of the directive into national law .

In any case, however, reliance upon the general terms of Article 2 is no substitute for compliance with the conditions laid down in the other provisions of the directive, such as Article 9 . In any event, if such an approach is to be acceptable - particularly when the object is to justify derogations from general prohibitions - it must be based on appropriate grounds, which is not the case here .

The Commission also maintains that, in addition to the keeping of birds, Article 6 of the royal decrees allows the exchange of birds, which, particularly in practice, is almost impossible to distinguish from trade . As the Commission states in its application "exchanges between breeders can easily be described as trade ".

In any event, the Commission states, although the marketing as such of birds living in the wild is not expressly permitted, it is none the less facilitated and encouraged in practice, contrary to Article 6 ( 1 ) of the directive .

That argument, however, it seems to me, is not supported by adequate grounds . Article 6 of the royal decrees does not ( as the Commission acknowledges ) permit marketing as such, that is to say the release on to the market or the offering for sale of captured birds, within the meaning of Article 6 of the directive .

The general prohibition contained in Article 5 of the decrees also extends to selling, keeping and offering birds for sale, which are genuine marketing practices, and the derogation in Article 6 ( 1 ) refers ( apart from the keeping of birds ) only to exchange, which is a concept distinct from those referred to in Article 5 .

Exchange between bird keepers ( between breeders, as the Commission states ) is permitted, and therefore there is no apparent reason for objecting to the exchange of birds when it is lawful to keep them pursuant to one of the derogations allowed under Article 9 of the directive . Exchange is unlawful, in my view, only where the keeping of birds does not fall within the terms of the derogation provided for in the directive, with the result that this complaint cannot be separated from the first complaint .

The Commission also alleges - but only in its reply - that the Belgian legislation permits anyone to capture and keep birds, and that the capture and keeping of birds is not strictly controlled ( except in the Flemish region ) contrary to Article 9 ( 1 ) ( c ) of the directive, which permits such activities "under strictly supervised conditions and on a selective basis ".

Apart from the fact that that allegation must be regarded as having been made at an inappropriate time, it seems to me that the Belgian Government has adduced in its rejoinder in these proceedings sufficient evidence to demonstrate that the allegation is unfounded .

Thus, in the Flemish region, Article 5 of the Ministerial Decree of 14 September 1981 9 provides that persons who capture birds must satisfy seven conditions . Those conditions include : a clear record as regards hunting offences, a sufficient knowledge of birds and membership of an officially recognized group . The administrative authorities may impose special conditions and select the number of persons to be authorized from those indicated by the recognized groups . Article 6 authorizes the capture of birds only during a limited period and subject to certain conditions .

As regards the Walloon region, the capture and keeping of birds is regulated by the Decree of the Walloon Regional Executive of 28 July 1982*(10 ) which also lays down various conditions, including a clear record as regards hunting offences over the preceding five-year period, possession of an annual hunting licence and membership of an officially recognized group ( Articles 6 and 7 ). Article 5 also provides that every year the competent minister for the region is to determine the species which may be captured, the period in which they may be captured and the number of open marking rings to be issued to each bird catcher . Article 8 sets out the specifications for the cages which may be used and Article 2 provides that the birds captured must be recorded in a register to be kept at the disposal of the competent authorities .

There is no doubt therefore that, as regards the Flemish and Walloon regions, the conditions now under consideration for the application of the derogation provided for in Article 9 ( 1 ) ( c ) of the directive are fulfilled and there is no need even to consider the position in the Brussels region having regard to the inappropriate timing of the allegation and, in any event, to the conditions for catching birds in that region ( 100 specimens may be caught exclusively for scientific purposes and are subsequently released without being kept in captivity ).

I am therefore of the opinion that the fifth complaint is unequivocally well founded only as regards the failure to divide according to species the numbers of birds which may be hunted in the Flemish and Walloon regions, since one of the conditions set out in Article 9 ( 1 ) ( c ) of the directive ( the capture and keeping of birds "in small numbers ") is not fulfilled .

Sixth complaint : Article 7 ( 1 ) of the royal decrees

According to the Commission, Article 7 ( 1 ) of the abovementioned decrees permits the birds referred to in Annex 2 ( and Annex 3 ) to be transported in certain circumstances . Since the transport and display of birds necessarily involves keeping them, within the meaning of Article 5 ( e ) of the directive, the species listed in Annex 2 and Annex 3 to the royal decrees should correspond to the species listed in Annex III to the directive, which is not the case as regards any of the species concerned .

The Belgian Government contends in the first place that the Commission' s complaint is concerned solely with the Walloon and Brussels regions, by virtue of the Royal Decree of 20 July 1972 .

That, in my view, is not the case, in the light of the various Belgian legislative measures before the Court .

The Decree of the Flemish Regional Executive of 20 November 1985 did not alter the content of Article 7 of the Royal Decree of 9 September 1981 which is applicable to the Flemish region . Article 7 contains a provision which is substantially the same as Article 7 of the Royal Decree of 20 July 1972 .

However, the Commission' s reference to Annexes 2 and 3 to the royal decrees must be properly understood . Article 7 ( 1 ) of the Decree of 20 July 1972 refers only to Annex 2 ( which is inevitable in view of the fact that there was no Annex 3 ) and, as we know, Article 2 of the Decree of 20 November 1985 repealed Annex 3 to the Royal Decree of 9 September 1981 . Accordingly, as far as the Flemish region is concerned, Annex 3 to the last-mentioned royal decree will apply only for the duration of the transitional period, namely until 31 December 1986, by virtue of the Decree of 20 November 1985 .

That being so, it must be acknowledged that this complaint can be regarded as well founded only to the extent to which the previous complaint is well founded . In that regard, I would refer to my conclusion concerning the fifth complaint .

Seventh complaint : Article 7 ( 2 ) of the Royal Decree of 20 July 1972 and Article 6 ( 4 ) of the Royal Decree of 9 September 1981

According to the aforementioned articles, birds whose colouring is totally different ( according to the 1972 decree ) or visibly different ( according to the 1981 decree ) from that of birds of the same species, sub-species or variety living in the wild may be kept, transported and dealt in throughout the year .

In the Commission' s view, that is prohibited by Article 5 ( e ) and Article 6 ( 1 ) of the directive .

Once again, this is a situation in which the national provisions are "perilously close" to the borderline between what is lawful and what is unlawful under the Community directive .

The Belgian Government contends, in reply to the Commission' s claim, that birds whose colour differs visibly from the normal colour of birds living in the wild are either the result of long-term breeding, or the result of artificial cross-breeding, or else they are rare mutants . It follows that they are not "naturally occurring birds in the wild state", within the meaning of Article 1 of the directive, and they therefore fall outside its scope .

In its view, authorization to keep and exchange birds of those anomalous species meets the concern of the authorities to limit the possibility of obtaining birds from their natural environment and replaces it by another source of supply, namely birds reared in captivity .

However, the Commission maintains that total chromatic aberrations ( for instance albinos ) are also found in nature, with the result that such aberrations do not provide sufficient justification for concluding that the specimens in question were reared in captivity .

If that is the case, it must be stated immediately that the contested provisions are not open to criticism from the point of view of Community law, in so far as they refer to birds reared in captivity . As we have seen, the directive does not apply to such birds .

However, Article 6 ( 4 ) of the 1981 decree and Article 7 ( 2 ) of the 1972 decree do not, in my view, refer solely to birds reared in captivity whilst excluding those which fall within the scope of the directive .

That is confirmed by the fact that the said provisions derogate from Articles 3 and 5 of the decrees, and the latter, for their part, refer to the birds mentioned in Article 1, that is to say those "found in the wild in the Benelux countries" ( or "in the European territory of the Member States", according to Article 1 of the Decree of 9 September 1981 as amended by the Decree of 20 November 1985, so far as concerns the Flemish region ).

Everything points to the conclusion that, essentially, the Belgian legislature had those birds in mind when authorizing the derogations in question .

In any event, I do not consider that they qualify to be regarded as derogations within the terms of Article 9 of the directive inasmuch as they lack a number of essential elements : there is no reference to the basis of the derogation, to the conditions on which it is granted or to the formal requirements applicable to it .

The Belgian Government complains of the difficulties in carrying out checks, particularly with regard to mutants, cross-breeds and hybrids, in so far as it is at times impossible to classify birds whose colouring clearly departs from the norm in one or other of the known species of birds living in the wild .

The Commission maintains, however, that experiments carried out in other countries, such as the Netherlands, show that it is possible to apply a system of checks to birds reared in captivity .

Be that as it may, the fact remains, as I see it, that the difficulties in carrying out checks should not constitute an insurmountable barrier to bringing the Belgian legislation into line with the provisions of the directive, particularly as regards proper compliance with the conditions that must be fulfilled for derogations to be authorized pursuant to Article 9 .

In the light of the foregoing considerations in this case too I am of the opinion that the provisions complained of are not wholly compatible with those of Directive 79/409 .

Eighth complaint : Article 9 of the Royal Decree of 20 July 1972

Article 9 of the Royal Decree of 20 July 1972, which is applicable to the Walloon and Brussels regions, empowers the Minister for Agriculture to authorize temporary derogations from the general provisions concerning the protection of birds "in order to prevent damage or for reasons specific to the locality in question ".

The Commission considers that the aforesaid power to grant derogations goes much further than the scope of that provided for in Article 9 of the directive, in so far as there is no reference to the prevention of "serious damage" ( to crops, livestock, forests, fisheries and water ) and reliance on a factor relating to a specific locality does not in itself constitute a valid reason for a derogation unless it is combined with one of the other grounds referred to in Article 9 ( 1 ).

There is little to be said regarding this complaint .

In this connection, Article 8 of the Royal Decree of 9 September 1981 extended to the Flemish region practically all the derogations set out in Article 9 ( 1 ) and ( 2 ).

The Walloon and Brussels regions did not follow suit, with the result that the wording used in Article 9 of the Royal Decree of 1972, which is broader than that used in the directive, may lead to results which run counter to the protective purpose of the directive .

Once more, it is appropriate to refer in this connection to the previous decisions of the Court, which again appear to me to be relevant and according to which it is essential that each Member State should implement directives in a way which fully meets the requirements of clarity and certainty in legal situations which directives pursue . ( 11 ) The transposition of the directive into national law must not therefore be left to a national or regional administrative body whose discretionary power is not circumscribed by the applicable statutory provision in such a manner as to ensure full compliance with the conditions laid down by the directive .

In its reply to the Commission' s notice to the effect that it had failed to fulfil its obligations, the Belgian Government relies, in support of its position, on the fact that the derogations granted refer to what it regards as small numbers and to species which are potentially harmful, and on the fact that the Walloon Regional Executive' s Decree of 28 July 1982 repealing the Ministerial Decree of 17 September 1973 expressly refers, in its preamble, to Directive 79/409, and in particular to Article 9 ( 1 ) ( c ) thereof .

The Belgian Government did not reiterate those arguments during the written procedure .

Although the Decree of 28 July 1982 strictly limits the scope of Article 9 of the Decree of 20 July 1972 ( with particular reference to Article 6 of the latter decree ), I do not consider that reliance on that decree or on the other circumstances referred to is sufficient to expunge all the defects from the Belgian legislation .

In the first place, the 1982 decree applies only to the Walloon region and not to the Brussels region . Secondly, the Commission' s complaint concerns the wording of Article 9 of the Decree of 20 July 1972 and its compatibility with Article 9 of the directive, not the interpretation of the concept of small numbers . Moreover, the wording of Article 9 of the 1972 decree leaves the definition of other concepts, which are not clarified by the 1982 decree, unresolved .

Specifically, the reference to the mere prevention of damage is less restrictive than the reference to serious damage in the third indent of Article 9 ( 1 ) ( c ) of the directive; moreover, as a factor relating to a specific locality does not constitute a separate ground for a derogation under that provision, a factor of that kind can constitute a basis for a derogation from the general rules only by reference to or in conjunction with the various grounds set out in that provision .

Accordingly, I am of the opinion that, as regards the Brussels and Walloon regions, Belgium has not adequately fulfilled its obligation under Article 18 of the directive to amend its legislation .

5 . In those circumstances I suggest that the Court should declare that Belgium has failed to adopt, within the period prescribed, the provisions needed to fulfil all of its obligations under Council Directive 79/409/EEC of 2 April 1979 and has therefore failed to fulfil an obligation under the EEC Treaty .

In accordance with Article 69 ( 2 ) of the Rules of Procedure, the unsuccessful party should be ordered to pay the costs .

(*) Translated from the Portuguese

( 1 ) See the second and seventh recitals in the preamble to the directive .

( 2 ) Moniteur belge of 3 March 1882, as most recently amended by the Law of 30 June 1967, Moniteur belge of 10 August 1967 .

( 3 ) For instance, the action programme adopted by the Council in 1973 ( Official Journal 1973, C 112 of 20 December 1973 ), subsequently renewed and supplemented in 1977 ( Official Journal, C 139 of 13 June 1977 ) and in 1983 ( for 1982 to 1986 ) ( Official Journal, C 46 of 17 February 1983 ).

( 4 ) See the judgment of 4 April 1974 in Case 167/73 Commission v France ( Code du travail maritime ) (( 1974 )) ECR 359, and the judgment of 25 October 1979 in Case 159/78 Commission v Italy (( 1979 )) ECR 3247 .

( 5 ) See for instance, the judgment of 6 May 1980 in Case 102/79 Commission v Belgium (( 1980 )) ECR 1473; and also the judgment of 30 January 1985 in Case 143/83 Commission v Denmark (( 1985 )) ECR 427 .

( 6 ) See, for instance, the judgment of 5 May 1970 in Case 77/69 Commission v Belgium (( 1970 )) ECR 237 .

( 7 ) Decree of 20 November 1985 Moniteur belge of 31 December 1985 .

( 8 ) Emphasis added .

( 9 ) Moniteur belge of 13 November 1981 .

( 10 ) Moniteur belge of 18 September 1982 .

( 11 ) See the judgment of 6 May 1980 in Case 102/79 Commission v Belgium (( 1980 )) ECR 1473 and of 30 January 1985 in Case 143/83 Commission v Denmark (( 1985 )) ECR 427 .