1972, IT MUST BE STATED THAT IT LIMITS THE PROTECTION REQUIRED BY THE DIRECTIVE TO THE SPECIES OF BIRDS LIVING IN THE WILD STATE IN THE BENELUX COUNTRIES . SUCH A PROVISION IS IN ACCORDANCE WITH THE REQUIREMENTS OF THE DIRECTIVE IF IT ALSO COVERS BIRD SPECIES LIVING NATURALLY OR USUALLY IN THE EUROPEAN TERRITORY OF THE MEMBER STATES . IN THIS REGARD IT SHOULD BE NOTED THAT THE WORDING OF THE PROVISION IN QUESTION ALSO COVERS BIRDS WHICH ARE ONLY PASSING THROUGH THE BENELUX COUNTRIES . THESE BIRDS MUST BE REGARDED AS LIVING NATURALLY IN THE WILD STATE IN THE BENELUX COUNTRIES ALBEIT FOR A LIMITED PERIOD . THE COMMISSION' S OBSERVATION THAT THERE ARE SPECIES OF BIRDS COVERED BY THE DIRECTIVE WHICH DO NOT LIVE PERMANENTLY IN THE TERRITORY OF THE BENELUX COUNTRIES AND WHICH DO NOT APPEAR IN THE AVIFAUNE DE BELGIQUE IS THEREFORE IRRELEVANT .
22 HOWEVER, THE PROTECTIVE EFFECT OF 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 BENELUX COUNTRIES BUT WHICH ARE TRANSPORTED THERE, KEPT THERE OR MARKETED THERE, WHETHER ALIVE OR DEAD . THE PROVISION IN QUESTION DOES NOT EXTEND THE PROTECTION PROVIDED FOR BY THE DIRECTIVE TO THOSE GROUPS OF BIRDS . ARTICLE 1 OF THE ROYAL DECREE DOES NOT, THEREFORE, TRANSPOSE THE WIDER PROTECTION REQUIRED BY THE DIRECTIVE COMPLETELY INTO THE BELGIAN LEGAL ORDER .
23 THE SECOND COMPLAINT MUST THEREFORE BE UPHELD .
THIRD COMPLAINT : PROTECTION OF NESTS
24 THE COMMISSION POINTS OUT THAT ARTICLE 3 ( 2 ) OF THE ROYAL DECREES ALLOWS BIRDS' NESTS BUILT AGAINST HOUSES AND ADJOINING BUILDINGS TO BE DISTURBED, REMOVED OR DESTROYED IN CONTRAVENTION OF ARTICLE 5 ( B ) OF THE DIRECTIVE .
25 THE BELGIAN GOVERNMENT, ON THE OTHER HAND, TAKES THE VIEW THAT THE PROVISION IN QUESTION IS JUSTIFIED BY REASONS OF PUBLIC HEALTH AND SAFETY WITHIN THE MEANING OF THE FIRST INDENT OF ARTICLE 9 ( 1 ) ( A ) OF THE DIRECTIVE . THE PRESENCE OF NESTS IN CHIMNEYS AND PIPES HAS LED ON MANY OCCASIONS TO FIRES AND FLOODS AND THEY HAVE ALSO CAUSED PROBLEMS OF HYGIENE, FOR EXAMPLE IN THE FOOD INDUSTRY .
26 IN THIS REGARD IT MUST BE STATED THAT ARTICLE 5 ( B ) OF THE DIRECTIVE REQUIRES THE MEMBER STATES TO PROHIBIT IN PARTICULAR DELIBERATE DESTRUCTION OF, OR DAMAGE TO, NESTS AND EGGS OR REMOVAL OF NESTS, WHEREAS ARTICLE 3 ( 2 ) OF THE ROYAL DECREES GENERALLY PERMITS THE REMOVAL AND DESTRUCTION OF NESTS BUILT AGAINST HOUSES AND ADJOINING BUILDINGS .
27 THE REASONS GIVEN BY THE BELGIAN GOVERNMENT TO JUSTIFY THE CONTESTED PROVISION, NAMELY THE PREVENTION OF FIRES, FLOODS AND DISEASE, ARE CERTAINLY OF SUCH A KIND AS TO JUSTIFY THE REMOVAL AND DESTRUCTION OF NESTS UNDER ARTICLE 9 OF THE DIRECTIVE . HOWEVER, IT IS CLEAR FROM THE BELGIAN GOVERNMENT' S