2.

The Italian Government challenges the basis of the action in so far as the complaints are based on factual claims (that the reproduction and rearing season or the species referred to in the first complaint lasts until 18 August; that the species referred to in the second complaint cross Italy in January, February and March) which the Commission has to prove. It further considers that those factual claims are not proved by the bibliography contained in the application. (a) First complaint The Italian Government considers that the Commission's claim that the coot, the moorhen, the mallard and the blackbird, which may be hunted in Italy as from 18 August, are still reproducing and rearing at that date is based solely on the bibliography set out in the application and that that list of works is of a general nature and cannot be applied specifically to the situation obtaining in Italy. In its view, the species in question are potentially independent as from 18 August. There may, however, be instances of late clutches and incubation, with the result that in some cases the young may still be dependent in the second half of August, but this may not be extrapolated to cover the whole of Italy and the cases in question are exceptional. The Italian Government maintains that the national legislature has taken due account of the requirement to protect all the species during the rearing and reproduction periods. In its view, Law No 968/77 has tackled that requirement scientifically in a way related specifically to Italy, by adopting a hunting calendar embodying a variety of hunting seasons which are designed specifically to protect the various species of birds during the delicate stages of rearing and reproduction. The Italian Government adds that the regions may deal with such exceptional, non-generalized situations by exercising the power conferred on them by the first paragraph of Article 12 of Law No 968/77. Consequently, the Italian legislation makes provision for instruments whereby the opening of the hunting season may be postponed in areas where such exceptional circumstances come to pass. The Italian Government points out that more than half the Italian regions, for reasons other than those set out in the first paragraph of Article 12 of Law No 968/77, and above all for reasons connected with tourism or agriculture, have postponed until mid-September or later the general opening of the hunting season in their areas. As a result, thanks to the hunting calendars in force, the danger of hunting taking place is in fact precluded in more than half the Italian regions. The Italian Government points out that that exceptional provision enables the protection of birds in the usual nesting, breeding and rearing period to be stepped up as a result of action by the regions, which, in particular cases, may alter the local hunting calendar, if the nesting, breeding and rearing period is altered by seasonal or climatic conditions, in order to ensure that the protection generally provided by the law is guaranteed also in those particular special circumstances. The Italian Government states that, as a rule, the reproduction period of the coot, the moorhen and the blackbird does not overlap with the hunting season. Only mallards may in some regions of Italy possibly still be dependent during the initial stage of the hunting season. There is in Italy a very marked migratory flow of mallards which takes place after the birds have bred and in comparison the size of the mallard population which nests in Italy in a given year is tiny. As a result, only a few local groups — and then only in certain areas of Italy — are likely to be in the last stage of the reproductive cycle in hunting seasons provided for by the national calendar. (b) Second complaint The Italian Government maintains that the claim that the species of migratory birds mentioned in the application cross Italy during January, February and March on their way to their nesting areas in central and northern Europe, with the result that they must be protected as from January, yet they may be hunted in Italy until 28 February or even 10 March, is also based on the bibliography set out in the application. The Italian Government states that the national legislation in question tailored the opening and closing dates of the hunting season to suit the requirements of the International Convention for the Protection of Birds, adopted in Paris on 18 October 1950, following Italy's accession to the Convention (Law No 812/78 of 24 November 1978). Article 2(a) of the Convention provides that migrants must be protected during their return flight to their nesting ground, particularly in March, April, May, June and July. The Italian Government states that the Decree of 20 December 1979, which fixed 28 February and 10 March as the opening dates for the hunting of the species listed in the application, was adopted after consulting the Istituto Nazionale di Biologia della Selvaggina (National Biological Institution for Wild Animal Species) and the Comitato Tecnico Venatorio Nazionale (National Technical Committee for Hunting). That decree, which relates to the specific situation in Italy, brought the national hunting calendar into line with the 1950 Convention and requires the closure of the hunting season to be geared to the natural propensities and migratory requirements of the individual species. The Italian Government maintains that, in the absence of contrary requirements in Directive 79/409 or of specific evidence to the contrary relating specifically to the situation in Italy, the relevant requirements of the Paris Convention may be adopted as the yardstick for the appropriate protection of migratory birds after adjustment in relation to the aim pursued by Article 7(4) of the Directive. The Italian Government also refers to the preamble to the Decree of 20 December 1979, which states that at least for the first 10 days of March Italy is not normally affected by significant bird migration and that individual birds of a given species which are found in Italy up to that date generally have not begun their return journey to their rearing grounds. That reasoning is even more applicable to February and attests to the fact that massive migration does not occur until the second half of March. In the Italian Government's view, the phrase ‘during their return to their rearing grounds’ in Article 7(4) of the Directive leaves a certain discretion in determining that period both in absolute terms and in each Member State. It therefore seems that it can be considered that the Directive and the Convention are based on the same requirements as regards the protection of migratory species during their return to their rearing grounds. It follows that since the national legislation at issue has been tailored to suit the requirements as to protection which are set out in the Paris Convention, it also complies with the same requirements as are set forth in Directive 79/409. The Italian Government adds that special situations affecting migratory species may also receive extended protection from the regions, pursuant to Article 12 of Law No 968/77.