CELEX: 61989CJ0334
Language: en
Date: 1991-01-17 00:00:00
Title: Judgment of the Court of 17 January 1991. # Commission of the European Communities v Italian Republic. # Failure by a Member State to fulfil its obligations - Conservation of wild birds. # Case C-334/89.

REPORT FOR THE HEARING
      in Case C-334/89 (
            *1
         )
      I — Legal background
      Directive 79/409/EEC is aimed at the conservation of all species of birds naturally occurring in the wild state in the European territory of the Member States. Its object is the protection, management and control of those species and their exploitation. The species mentioned in Annex I to the directive are the subject of the special conservation measures concerning their habitat in order to ensure their survival and reproduction in their area of distribution, pursuant to Article 4(1) of the directive. Articles 15 and 17 authorize the Commission, assisted by a special committee, to amend Annex I in order to adapt it to scientific and technical progress. Such an adaptation was made by Directive 85/411/EEC, the annex to which replaces Annex I to Directive 79/409.
      The new Annex I lists 144 species, as against 74 in the original. Article 2 of Directive 85/411 provides that Member States must bring into force the implementing provisions before 31 July 1986 and inform the Commission forthwith.
      II — Pre-litigation procedure
      Since it received no notification of the provisions implementing Directive 85/411 in Italy, the Commission, by letter dated 26 March 1987, initiated the procedure under Article 169 of the EEC Treaty. There was no reply to that letter, and it issued a reasoned opinion on 12 September 1988. There was no reply to the reasoned opinion.
      III — Written procedure
      By application lodged at the Court Registry on 30 October 1989 the Commission, pursuant to Article 169 of the EEC Treaty, brought the matter of the alleged failure by the Italian Republic to fulfil its obligations in respect of the conservation of wild birds before the Court.
      Upon hearing the Report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry.
      IV — Forms of order sought
      The Commission claims that the Court should:
      
               —
            
            
               Declare that by not adopting by 31 July 1986 the measures needed to implement Commission Directive 85/411 of 25 July 1985 amending Council Directive 79/409 on the conservation of wild birds or in any event by not informing the Commission thereof, the Italian Republic has failed to fulfil its obligations under the EEC Treaty.
            
         
               —
            
            
               Order the defendant to pay the costs.
            
         The Italian Government contends that the Court should:
      
               —
            
            
               Declare the action inadmissible or dismiss it;
            
         
               —
            
            
               Order the applicant to pay the costs.
            
         VI — Pleas in law and arguments of the parties
      
               1.
            
            
               The Commission states that Article 2 of Directive 85/411 requires Member States to inform it forthwith of the measures adopted to implement the directive. The Italian authorities have given the Commission no information on the subject. The Commission is therefore compelled to conclude that the Italian Republic has not adopted the measures necessary to comply with Directive 85/411, although the period laid down in Article 2 of the directive expired on 31 July 1986.
               The Commission states that no matter when it discovers that a directive has not been implemented it may initiate proceedings for failure to fulfil obligations, even if it has already initiated similar proceedings in respect of other aspects of the same directive. In the present case Article 4 of Directive 79/409 provides that for each species of wild bird mentioned in Annex I Member States must define special protection areas and adopt special conservation measures. The Commission states that Annex I has been completely reformulated and supplemented by Directive 85/411.
               It explains that all aspects of the directive are potentially binding. If a Member State considers it inapplicable because certain factual conditions are not satisfied, for example because certain species of birds are absent from its territory, it is for such Member State to justify not having adopted measures in respect of those species.
               The Commission also states that the existence and adequacy of the special conservation measures referred to in Article 4 of the directive can be reviewed only on the basis of the species of birds present in Italian territory. In other words, the directive must be implemented in that respect by identification in respect of each species of special protection areas and the adoption of special measures.
            
         
               2.
            
            
               The Italian Government states that in the application in Case 262/85 (Commission v Italy), which led to the judgment of the Court of 8 July 1987 ([1987] ECR 3073), the Commission did not allege any failure to implement Article 4 of the directive in respect of the version of Annex I which was then in force. In the Italian Government's view that indicates that the Commission considered that the situation in Italy complied with that provision of the directive in respect of the original Annex I.
               The Italian Government alleges that the new Annex I introduced by Directive 85/411 (144 species for which special conservation measures must be taken, instead of 74) lists many species of birds which do not occur in Italian territory. In its view it could reasonably be expected that the Commission should state both as regards the original Annex I and the extended Annex I which species needed to be the subject of special conservation measures, having regard to the situation of the protected species occurring in Italian territory. No such particulars have been given, however, either in the pre-litigation procedure or in the application to the Court.
               In the Italian Government's view, in those circumstances it was not possible to supply any information to the Commission on that subject. It does not think it possible to bring proceedings for failure to fulfil obligations in order to determine whether and to what extent further special conservation measures are needed in Italy as a result of the replacement of Annex I of the directive. It therefore considers that the action must be declared inadmissible in view of its general nature.
               The Italian Government states that the Commission ought to have informed it of the result of its inquiry finding that there was a failure to implement Article 4 and to have made a specific complaint so as to make possible an exchange of views in relation to the actual situation of any particular protected species. No information of that nature has been supplied.
               The Italian Government considers that it does not have to notify and explain all the special conservation measures which the Italian regions have adopted in respect of each species of bird referred to in Annex I of the directive occurring in Italy. If the Commission had complained of a specific failure to implement the directive in that respect it would have been possible to review the existence and adequacy of the national special conservation measures. In the absence of a specific complaint such a review is practically impossible.
               The Italian Government goes on to observe that the implementing measures referred to in Article 4(1) of the directive have been adopted in Italian law. The regions may establish parks and nature reserves for the conservation of the habitat. Pursuant to Law No 968 of 27 December 1977(Gazetta Ufficiale della Repubblica Italiana No 3, 4.1.1978) they must on a regional basis provide for:
               
                        —
                     
                     
                        Protection areas intended as refuge, breeding and rest areas for wildlife (Art. 6(1)(a));
                     
                  
                        —
                     
                     
                        Areas for repopulation and capture, intended for game breeding, its spread to adjacent areas and its capture with a view to repopulation (Art. 6(1)(b));
                     
                  
                        —
                     
                     
                        Public wildlife-breeding centres, including natural reserves (Art. 6(1)(c));
                     
                  
                        —
                     
                     
                        Rules which provide for or regulate incentives for owners and tenants of land, (individuals or groups) to undertake the restoration and protection of the environment and to provide for game production (Art. 6(1)(f)).
                     
                  According to the Italian Government, it is clear that the existence and adequacy of the national special conservation measures, having regard also to the matters referred to in Article 4(1), can be reviewed only in respect of certain species of birds connected with Italian territory. A general and generic review such as that called for by the Commission is thus impossible.
            
         M. Díez de Velasco
      Judge-Rapporteur
      (
            *1
         )	Language of the case: Italian.
    ---documentbreak--- 
      
         JUDGMENT OF THE COURT
      17 January 1991 (
            *1
         )
      In Case C-334/89,
      
         Commission of the European Communities, represented by G. Marenco, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of G. Berardis, also a member of the Commission's Legal Department, Wagner Centre, Kirchberg,
      applicant,
      v
      
         Italian Republic, represented by I. M. Braguglia, Avvocato dello Stato, acting as Agent, with an address for service in Luxembourg at the Italian Embassy, 5 rue Marie-Adélaïde,
      defendant,
      APPLICATION for a declaration that by failing to adopt within the prescribed period the measures needed to implement in national law Commission Directive 85/411/EEC of 25 July 1985 amending Council Directive 79/409/EEC on the conservation of wild birds (Official Journal 1985, L 233, p. 33), or at least by failing to inform the Commission of any measures adopted, the Italian Republic has failed to fulfil its obligations under the EEC Treaty,
      THE COURT
      composed of: O. Due, President, G. F. Mancini, T. F. O'Higgins, G. C. Rodríguez Iglesias and M. Diez de Velasco (Presidents of Chambers), Sir Gordon Slynn, C. N. Kakouris, R. Joliét and F. A. Schockweiler, Judges,
      Advocate General: W. Van Gerven
      Registrar: H. A. Rühi, Principal Administrator
      having regard to the Report for the Hearing and further to the hearing on 11 October 1990,
      after hearing the Opinion of the Advocate General delivered at the sitting on 8 November 1990,
      gives the following
      Judgment
      
               1
            
            
               By application lodged at the Court Registry on 30 October 1989, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that by failing to adopt within the prescribed period the measures needed to implement in national law Commission Directive 85/411/EEC of 25 July 1985 amending Council Directive 79/409/EEC on the conservation of wild birds (Official Journal 1985, L 233, p. 33), or at least by failing to inform the Commission of the measures adopted, the Italian Republic has failed to fulfil its obligations under the EEC Treaty.
            
         
               2
            
            
               The first subparagraph of Article 4(1) of Directive 79/409 on the conservation of wild birds requires the Member States to adopt special conservation measures concerning the habitat of the species mentioned in Annex I to the directive in order to ensure their survival and reproduction in their area of distribution. According to the final subparagraph of that provision, Member States are to classify in particular the most suitable territories in number and size as special protection areas for the conservation of those species.
            
         
               3
            
            
               Directive 85/411 replaced Annex I to Directive 79/409. The new Annex I enumerates 144 species in respect of which special conservation measures must be adopted. Article 2 of Directive 85/411 provides that the Member States are to bring into force implementing provisions before 31 July 1986 and are to inform the Commission thereof forthwith.
            
         
               4
            
            
               According to the Commission, the Member States must establish special protection areas and adopt special conservation measures in respect of each of the species referred to in Annex I to the directive. It argues that if a Member State considers the requirements of a directive to be inapplicable on the ground that certain factual conditions are not fulfilled, it is for that Member State to justify the absence of implementing measures. As regards this case the Commission states that the obligations to which Annex I to the directive relates must be implemented by identifying special protection areas for each species and by adopting special conservation measures.
            
         
               5
            
            
               The Italian Government points out that the new Annex I established by Directive 85/411 lists a large number of species which do not occur in Italian territory. In its view, it was reasonable to expect the Commission to indicate which species must be the subject of special conservation measures in Italy. Accordingly, in the absence of any indications of that kind, it was not required to adopt and consequently to notify measures implementing the directive as regards the species referred to in Annex I.
            
         
               6
            
            
               Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the pleas in law and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.
            
         
               7
            
            
               According to the specific scheme of protection established for the bird species listed in Annex I to the directive, each Member State is under an obligation, by virtue of Anicie 4(1) of the directive, to adopt the special protective and conservation measures required for those species. It must then inform the Commission of the manner in which it has discharged those obligations.
            
         
               8
            
            
               As the Court emphasized in its judgment of 11 July 1987 in Case 262/85 (Commission v Italy [1987] ECR 3073), a faithful transposition becomes particularly important in a case such as that of Directive 79/409 in which the management of the common heritage is entrusted to the Member States in their respective territories.
            
         
               9
            
            
               It is clear from that allocation of responsibilities that it is for the Member States to identify the species which must be the subject of the special protective and conservation measures required by Article 4(1) of the directive. Moreover, the Member States are better placed than the Commission to ascertain which of the species listed in Annex I to the directive occur in their territory.
            
         
               10
            
            
               The Italian Government has not, either during or before the proceedings before the Court, reported any special conservation measures adopted by it at national level in respect of the species listed in that annex. Nor has it made any claim to the effect that none of the species in question occurs in Italian territory. Accordingly, it should have established special protection areas and adopted special conservation measures in respect of the species present on its territory.
            
         
               11
            
            
               It must therefore be held that by failing to adopt within the prescribed period the measures needed to implement in national law Commission Directive 85/411 of 25 July 1985 amending Council Directive 79/409 on the conservation of wild birds, the Italian Republic has failed to fulfil its obligations under the EEC Treaty.
            
         Costs
      
               12
            
            
               Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. As the Italian Republic has been unsuccessful, it must be ordered to pay the costs.
            
          
            
               On those grounds,
               THE COURT
               hereby:
            
          
            
               
                        (1)
                     
                     
                        Declares that by failing to adopt within the prescribed period the measures needed to implement in national law Commission Directive 85/411/EEC of 25 July 1985 amending Council Directive 79/409/EEC on the conservation of wild birds, the Italian Republic has failed to fulfil its obligations under the EEC Treaty;
                     
                  
          
            
               
                        (2)
                     
                     
                        Orders the Italian Republic to pay the costs.
                     
                  
          
               
                  
                     Due
                     Mancini
                     O'Higgins
                     Rodriguez Iglesias
                     Diez de Velasco
                     Slynn
                     Kakouris
                     Joliét
                     Schockweiler
                     Delivered in open court in Luxembourg on 17 January 1991.
                     
                        
                           J.-G. Giraud
                           Registrar
                        
                        
                           O. Due
                           President
                        
                     
                  
               
            (
            *1
         )	Language of the case: Italian.