WRITTEN QUESTION E-2688/02

by Benedetto Della Vedova (NI) to the Commission

(26 September 2002)

Subject: Breach of Council Directive 79/409/EC of 2 April 1979 by the Italian Republic through the Lombardy region's Law No 18 of 7 August 2002

Law No 18 of 7 August 2002 enacted by the Lombardy Region has authorised, during the 2002/2003 hunting season, the hunting of the following species of wild birds that are protected by Directive 79/409/EEC(1):

- Passer italiae, Passer montanus and Sturnus vulgaris (Italian sparrow, tree sparrow and starling) from 1 September to 30 December, allowing each hunter to take 20 a day and up to 100 a year;

- Fringilla coelebs and Fringilla montifringilla (chaffinch and brambling) from 15 September to 30 December, with each hunter being allowed to take up to five a day and 40 a year.

According to the Court of Justice (judgment of 17 May 2001 in Case C-159/99), Article 9(2) of Council Directive 79/409/EEC requires an administrative authority to determine in respect of the cases falling within the scope of Article 9(1), if the conditions of that paragraph are fulfilled, in what area and for what birds hunting may exceptionally be authorised. The authorities responsible under Article 9(2) of the [birds] directive must also examine whether there is any other satisfactory solution which would allow the problem in the particular case to be resolved without the need to resort to the granting of a derogation.

However, this derogation has been granted not by an administrative authority, identified in advance, under a regular administrative procedure, but directly by regional law No 18/2002. Consequently, the existence of the conditions required by the directive has been affirmed in the shape of an incontrovertible legal certainty. In the case of the Fringilla coelebs and Fringilla montifringilla species, the derogation allowing hunting has been made on the grounds of the favourable health status of the two species, in blatant in violation of Article 9(1)(c) of the Directive.

As a result of such regional laws, the Italian Republic has failed to satisfy the obligations incumbent upon it under the Treaties as it is incompatible with the Community legal order for a Member State, or one of its territorial entities, to adopt at close intervals legislation which is essentially of an administrative nature, in order to avoid complying with Community law.

Does the Commission intend to bring infringement proceedings against the Italian Republic, pursuant to Article 226 of the EC Treaty, for the breach of Directive 79/409/EEC resulting from the Lombardy region's law No 18 of 7 August 2002.

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

Answer given by Mrs Wallström on behalf of the Commission

(11 November 2002)

Under Article 9 of the Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, 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 reintroduction 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.

The derogations must specify:

- the species which are subject to the derogations,

- the means, arrangements or methods authorised 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 the light of the above, it should be noted that the above-mentioned Directive does not prevent Member States from granting derogations by ad hoc legislative acts limited in time, provided that they comply with the reasons and the conditions listed in paragraphs 1 and 2 of Article 9. In particular, derogations should be based on a declaration, from the empowered authority, that the required conditions are met.

In the specific case, since the Commission is not aware of the situation described by the Honourable Member, it will take the appropriate steps to gather detailed information and to ensure, within the limits conferred on it by the EC Treaty, the observance of Community law.

Should the Commission be informed that Community law is being breached in the specific case, it would not hesitate, as the Guardian of the EC Treaty, to take all necessary measures, including infringement procedures under Article 226 of the EC Treaty, in order to ensure the observance of relevant Community law.