WRITTEN QUESTION P-3611/00

by Enrico Ferri (PPE-DE) to the Commission

(15 November 2000)

Subject: Implementation of Article 9 of Directive 79/409/EEC in Tuscany Regional Council Decision No 184 of 27 September 2000

Does Tuscany Regional Council Decision No 184 of 27 September 2000 correctly implement Article 9 of Directive 79/409/EEC(1) concerning derogations from the provisions on the conservation of wild birds?

The legal bases for that decision are, in addition to the above directive: Law No 157 of 11 February 1992; the Prime Ministerial Decree of 21 March 1997; the Legislative Decree of 4 June 1997; and Tuscan Regional Law No 70 of 11 August 1997. Pursuant to that legislative framework and owing to serious, proven and duly documented damage to crops and harvests, the Tuscan regional authorities decided to apply the provisions of Article 9 of the directive by providing for the slaughter, within clearly defined limits, of swallows and tree swallows, which are among the species covered by the conservation provisions.

(1) OJ L 103, 25.4.1979, p. 1.

Answer given by Mrs Wallström on behalf of the Commission

(12 December 2000)

Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds sets out a system of wild bird protection. In general the capture of wild bird species is prohibited. However, the system of wild bird protection set out in the Directive allows for some derogations. Article 9 of the Directive lists the requirements and conditions under which derogations to the provisions of the Directive are allowed.

1. Member states may derogate from the provisions of articles 5, 6, 7 and 8, where there is no other satisfactory solution, for the following reasons: (a) in the interests of public health and safety, in the interests of air safety, to prevent serious damage to crops,

livestock, forests, fisheries and water, for the protection of flora and fauna; (b) for the purposes of research and teaching, of re-population, of re-introduction and for the breeding necessary for these purposes; (c) to permit, under strictly supervised conditions and on a selective basis, the capture, keeping or other judicious use of certain birds in small numbers.

2. The derogations must specify: the species which are subject to the derogations, the means, arrangements or methods authorized for capture or killing, the conditions of risk and the circumstances of time and place under which such derogations may be granted, the authority empowered to declare that the required conditions obtain and to decide what means, arrangements or methods may be used, within what limits and by whom, the controls which will be carried out.

In order to assess compliance with Directive 79/409/EEC of acts of derogation taken by the authorities it is necessary to check whether these derogations have met the above-mentioned requirements and conditions. On the basis of the information given by the Honourable Member, the Commission does not have sufficient details to be able to investigate whether deliberazione of Regione Toscana of 27 September 2000, which adopted a derogation concerning the wild bird species Passer Italiae and Passer Montanus, complies with Directive 79/409/EEC and it is not therefore in a position to answer the question at the moment. It would ask the Honourable Member to provide more details.

However, the Commission is aware that these conditions are generally not fully respected by the Italian legislation. The derogation regime set out in the Italian legislation does not comply with the provisions of Article 9 of the Directive. The Commission considers that Italy failed to ensure respect for all conditions of the regime in certain situations where derogations are invoked. The Commission therefore referred the matter to the Court of Justice, where the case is pending.