CELEX: 62002CJ0182
Language: en
Date: 2003-10-16 00:00:00
Title: Judgment of the Court (Sixth Chamber) of 16 October 2003. # Ligue pour la protection des oiseaux and Others v Premier ministre and Ministre de l'Aménagement du territoire et de l'Environnement. # Reference for a preliminary ruling: Conseil d'Etat - France. # Directive 79/409/EEC - Conservation of wild birds - Opening and closing dates for hunting - Derogations. # Case C-182/02.

Case C-182/02 Ligue pour la protection des oiseaux and OthersvPremier ministre and Ministre de l'Aménagement du territoire et de L'Environnement(Reference for a preliminary ruling from the Conseil d'État (France))
         
            «(Directive 79/409/EEC – Conservation of wild birds – Opening and closing dates for hunting – Derogations)»
            
               
                  Opinion of Advocate General Ruiz-Jarabo Colomer delivered on 6 May 2003 
                     
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                  Judgment of the Court (Sixth Chamber), 16 October 2003  
                     
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            Summary of the Judgment
         
         
                  1..
                  Environment – Conservation of wild birds – Directive 79/409 – Opening and closing dates for hunting – Derogations – Judicious use of certain birds in small numbers – Hunting of wild birds for recreational purposes – Included  (Council Directive 79/409, Arts 7(4) and 9(1)(c)) 
         
                  2..
                  Environment – Conservation of wild birds – Directive 79/409 – Opening and closing dates for hunting – Derogations – Judicious use of certain birds in small numbers – Conditions  (Council Directive 79/409, Art. 9(1)(c)) 
         
         1.
          Article 9(1)(c) of Directive 79/409 on the conservation of wild birds permits a Member State to derogate from the opening
         and closing dates for hunting which follow from consideration of the objectives set out in Article 7(4) of that directive.
         In that connection, the hunting of wild birds for recreational purposes during the periods mentioned in Article 7(4) of the
         Directive may constitute a judicious use of certain birds in small numbers authorised by Article 9(1)(c) of that directive,
         as do the capture and sale of wild birds even outside the hunting season with a view to keeping them for use as live decoys
         or to using them for recreational purposes in fairs and markets. see paras 11-12, operative part 1
         
         2.
          Article 9 of Directive 79/409 on the conservation of wild birds must be interpreted as allowing hunting to be authorised pursuant
         to Article 9(1)(c) where there is no other satisfactory solution. That condition would not be met, inter alia, if the sole
         purpose of the derogation authorising hunting were to extend the hunting periods for certain species of birds in territories
         which they already frequent during the hunting periods fixed in accordance with Article 7 of the Directive. Further, hunting must be carried out under strictly supervised conditions and on a selective basis and must apply only to
         certain birds in small numbers. The latter condition cannot be satisfied if a hunting derogation does not ensure the maintenance
         of the population of the species concerned at a satisfactory level. If that condition is not fulfilled, the use of birds for
         recreational hunting cannot, in any event, be considered judicious and, accordingly, acceptable for the purposes of the directive.
            Finally, the measures under which hunting is authorised 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, and the controls which will
         be carried out. see paras 15, 17-19, operative part 2
      

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Sixth Chamber)16 October 2003  (1)
         
         
            
         
               ((Directive 79/409/EEC – Conservation of wild birds – Opening and closing dates for hunting – Derogations))
               
            In Case C-182/02, 
            REFERENCE to the Court under Article 234 EC by the Conseil d'État (France) for a preliminary ruling in the proceedings pending
            before that court between
            
            
            
             Ligue pour la protection des oiseaux and Others 
            
            
            and
            
             Premier ministre,  Ministre de l'Aménagement du territoire et de l'Environnement, interveners: Union nationale des fédérations départementales de chasseurs,  Association nationale des chasseurs de gibier d'eau, 
            
            
            on the interpretation of Article 9(1)(c) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds
            (OJ 1979 L 103, p. 1),
            
            THE COURT (Sixth Chamber),,
            
            composed of: J.-P. Puissochet, President of the Chamber, R. Schintgen, C. Gulmann (Rapporteur), V. Skouris and N. Colneric, Judges, 
            
            Advocate General: D. Ruiz-Jarabo Colomer, Registrar: H. von Holstein, Deputy Registrar, 
            
            
            after considering the written observations submitted on behalf of:
               
               
               ─
               Ligue pour la protection des oiseaux, by A. Bougrain-Dubourg, president, 
               
               
               ─
               Rassemblement des opposants à la chasse, by C. Xavier, avocat, 
               
               
               ─
               Union nationale des fédérations départementales de chasseurs, by H. Farge, avocat, 
               
               
               ─
               the French Government, by G. de Bergues and E. Puisais, acting as Agents, 
               
               
               ─
               the Greek Government, by V.N. Kontolaimos and I. Khalkias, acting as Agents, 
               
               
               ─
               the Commission of the European Communities, by G. Valero Jordana and X. Lewis, acting as Agents, 
               
               
            
            
            having regard to the Report for the Hearing,
            
            after hearing the oral observations of the Ligue pour la protection des oiseaux, the Union nationale des fédérations départementales
               de chasseurs, the French and Greek Governments and the Commission at the hearing on 3 April 2003,
            
            
            after hearing the Opinion of the Advocate General at the sitting on 6 May 2003,
         gives the following
         
         
         Judgment
         1
            
         By decision of 25 January 2002, received at the Court on 15 May 2002, the Conseil d'État (Council of State) referred to the
         Court for a preliminary ruling under Article 234 EC two questions on the interpretation of Article 9(1)(c) of Council Directive
         79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1, hereinafter  
         the Directive). 
         
         
         2
            
         Those questions were raised in actions brought before the Conseil d'État by the Ligue pour la protection des oiseaux (League
         for the Protection of Birds), the Association pour la protection des animaux sauvages (Association for the Protection of Wild
         Animals) and the Rassemblement des opposants à la chasse (Anti-Hunting Union) respectively seeking the annulment, for misuse
         of powers, of Decree No 2000-754 of 1 August 2000 relating to the dates for the hunting of migratory birds and waterfowl and
         amending the Rural Code (JORF of 5 August 2000, p. 12178, hereinafter  
         the contested decree). 
         
            
               Legal framework
            Community legislation
         
         
         3
            
         Article 7 of the Directive is worded as follows: 
         
         1.
          Owing to their population level, geographical distribution and reproductive rate throughout the Community, the species listed
         in Annex II may be hunted under national legislation. Member States shall ensure that the hunting of these species does not
         jeopardise conservation efforts in their distribution area.
         
         
         2.
          The species referred to in Annex II/1 may be hunted in the geographical sea and land area where this directive applies.
         
         
         3.
          The species referred to in Annex II/2 may be hunted only in the Member States in respect of which they are indicated.
         
         
         4.
          Member States shall ensure that the practice of hunting, including falconry if practised, as carried on in accordance with
         the national measures in force, complies with the principles of wise use and ecologically balanced control of the species
         of birds concerned and that this practice is compatible as regards the population of these species, in particular migratory
         species, with the measures resulting from Article 2. They shall see in particular that the species to which hunting laws apply
         are not hunted during the rearing season nor during the various stages of reproduction. In the case of migratory species,
         they shall see in particular that the species to which hunting regulations apply are not hunted during their period of reproduction
         or during their return to their rearing grounds. Member States shall send the Commission all relevant information on the practical
         application of their hunting regulations.
         
         
         
         4
            
         Article 9(1) and (2) of the Directive provides: 
         
         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 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.
         
         National legislation
         
         
         5
            
         Article 2 of the contested decree provides that derogations from prohibitions on hunting outside the hunting periods set by
         the administrative authorities and during certain vulnerable periods for birds may be granted by prefects (departmental heads
         of administration) to permit the capture, keeping or other judicious use of geese, wood pigeons and thrush in small numbers,
         until 20 February. An order of the Minister responsible for hunting, adopted following consultation with the Conseil national
         de la chasse et de la faune sauvage (National Council for Hunting and Wildlife), lays down the conditions in which such uses
         may be authorised and the procedures for the controls to be implemented. The Minister also determines, after consultation
         with the Fédération nationale de la chasse (National Hunting Federation) and the Office national de la chasse et de la faune
         sauvage (National Authority for Hunting and Wildlife), the maximum number of birds, by species, which may be taken in each
         department. Prefects establish the maximum number of birds which may be taken by beneficiaries of the derogation. 
         The main proceedings and the questions referred for a preliminary ruling
         
         6
            
         In the actions brought before the Conseil d'État to annul the contested decree for misuse of powers, that court in essence
         stated that Article 2 of that decree is intended to implement Article 9(1) of the Directive. According to the Conseil d'État,
         the assessment of the legality of Article 2 depends, first, on whether Article 9(1)(c) of the Directive permits derogations
         from the opening and closing dates for hunting set in the light of the objectives specified in Article 7(4) of the Directive
         and, second, if so, what the criteria and limits are when laying down those derogations. 
         
         
         7
            
         The Conseil d'État, after annulling Article 1 of the contested decree in part in so far as it related to the opening or closing
         dates for hunting certain species, decided to stay proceedings and to refer the following questions to the Court for a preliminary
         ruling: 
         
         1.
          Does Article 9(1)(c) of Council Directive 79/409 of 2 April 1979 permit a Member State to derogate from the opening and closing
         dates for hunting which follow from consideration of the objectives specified in Article 7(4) thereof? 
         
         
         2.
          If so, what are the criteria which make it possible to establish the limits of that derogation?
         
         The first question
         
         8
            
         Article 9(1)(c) of the Directive provides that Member States may derogate from, inter alia, Article 7 where there is no other
         satisfactory solution, in order to permit, under strictly supervised conditions and on a selective basis, the capture, keeping
         or other judicious use of certain birds in small numbers. 
         
         
         9
            
         It therefore appears that Article 9(1)(c) of the Directive permits authorisation, in compliance with the conditions set out
         in that provision, of the capture, keeping or other judicious use of certain birds during the periods mentioned in Article
         7(4) of the Directive, during which the survival of wild birds is at particular risk. 
         
         
         10
            
         According to the case-law of the Court, Article 9 of the Directive authorises Member States to derogate from provisions relating,
         inter alia, to hunting (Case 247/85  
          Commission  v  
          Belgium  [1987] ECR 3029, paragraph 7). The Court has also accepted the possibility of derogating from the prohibition on hunting
         species of birds not listed in Annex II to the Directive, to which Article 7(1) refers, in particular for the reason set out
         in Article 9(1)(c) of the Directive (Case C-118/94  
          Associazione Italiana per il WWF and Others   [1996] ECR I-1223, paragraph 21). 
         
         
         11
            
         It is clear from the foregoing that the hunting of wild birds for recreational purposes during the periods mentioned in Article
         7(4) of the Directive may constitute a judicious use authorised by Article 9(1)(c) of that directive, as do the capture and
         sale of wild birds even outside the hunting season with a view to keeping them for use as live decoys or to using them for
         recreational purposes in fairs and markets (see Case 262/85  
          Commission  v  
          Italy  [1987] ECR 3073, paragraph 38). 
         
         
         12
            
         The answer to the first question must therefore be that Article 9(1)(c) of the Directive permits a Member State to derogate
         from the opening and closing dates for hunting which follow from consideration of the objectives set out in Article 7(4) of
         the Directive. 
         The second question
         
         13
            
         First, Article 9 of the Directive authorises Member States to derogate from the general prohibition on hunting protected species
         which is laid down in Articles 5 and 7 of the Directive only by measures which refer in sufficient detail to the factors mentioned
         in Article 9(1) and (2) (see  
          Associazione Italiana per il WWF and Others , cited above, paragraph 26). 
         
         
         14
            
         A national measure which permits derogating from Article 7(4) of the Directive by virtue of Article 9(1), such as the measure
         cited in paragraph 5 of this judgment, does not comply with the latter provision if it fails to refer to the fact that such
         a derogation can be granted only where there is no other satisfactory solution (see, to that effect,  
          Commission  v  
          Italy , cited above, paragraph 39). 
         
         
         15
            
         Second, as regards hunting in particular, that activity can be permitted pursuant to Article 9(1)(c) of the Directive only
         if: 
         
         
         ─
            there is no other satisfactory solution; 
         
         
         
         ─
            it is carried out under strictly supervised conditions and on a selective basis; 
         
         
         
         ─
            it applies only to certain birds in small numbers. 
         
         
         
         
         16
            
         The first of the conditions set out in the preceding paragraph cannot be considered to have been satisfied when the hunting
         period under a derogation coincides, without need, with periods in which the Directive aims to provide particular protection
         (see, to that effect,  
          Commission  v  
          Italy , paragraph 39). There would be no such need if the sole purpose of the derogation authorising hunting were to extend the
         hunting periods for certain species of birds in territories which they already frequent during the hunting periods fixed in
         accordance with Article 7 of the Directive. 
         
         
         17
            
         The third of those conditions cannot be satisfied if a hunting derogation does not ensure the maintenance of the population
         of the species concerned at a satisfactory level. If that condition is not fulfilled, the use of birds for recreational hunting
         cannot, in any event, be considered judicious and, accordingly, acceptable for the purposes of the 11th recital in the preamble
         to the Directive. 
         
         
         18
            
         Finally, the measures under which hunting is authorised pursuant to Article 9(1)(c) of the Directive must, in accordance with
         Article 9(2), 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. 
         
         
         
         
         19
            
         In the light of the foregoing, the answer to the second question must be that Article 9 of the Directive must be interpreted
         as allowing hunting to be authorised pursuant to Article 9(1)(c) where: 
         
         
         ─
            there is no other satisfactory solution. That condition would not be met, inter alia, if the sole purpose of the derogation
            authorising hunting were to extend the hunting periods for certain species of birds in territories which they already frequent
            during the hunting periods fixed in accordance with Article 7 of the Directive; 
         
         
         
         ─
            it is carried out under strictly supervised conditions and on a selective basis; 
         
         
         
         ─
            it applies only to certain birds in small numbers; 
         
         
         
         ─
            mention is made of:
         
         (a)
         the species which are subject to the derogations; 
         
         
         (b)
         the means, arrangements or methods authorised for capture or killing; 
         
         
         (c)
         the conditions of risk and the circumstances of time and place under which such derogations may be granted; 
         
         
         (d)
         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; 
         
         
         (e)
         the controls which will be carried out.  
         
         
         
         
         
         Costs
         20
            
         The costs incurred by the French and Greek Governments and by the Commission, which have submitted observations to the Court,
         are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending
         before the national court, the decision on costs is a matter for that court. 
         
         On those grounds, 
         
         
         
            
            THE COURT (Sixth Chamber),
         
         
         in answer to the questions referred to it by the Conseil d'État by decision of 25 January 2002, hereby rules: 
         
            
            1.
              Article 9(1)(c) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds permits a Member State to
               derogate from the opening and closing dates for hunting which follow from consideration of the objectives set out in Article
               7(4) of that directive.  
            
            
            2.
              Article 9 of Directive 79/409 must be interpreted as allowing hunting to be authorised pursuant to Article 9(1)(c) where:
                
            
            
            ─
               there is no other satisfactory solution. That condition would not be met, inter alia, if the sole purpose of the derogation
               authorising hunting were to extend the hunting periods for certain species of birds in territories which they already frequent
               during the hunting periods fixed in accordance with Article 7 of Directive 79/409; 
            
            
            
            ─
               it is carried out under strictly supervised conditions and on a selective basis; 
            
            
            
            ─
               it applies only to certain birds in small numbers; 
            
            
            
            ─
               mention is made of: 
            
            (a)
             the species which are subject to the derogations;  
            
            
            (b)
             the means, arrangements or methods authorised for capture or killing;  
            
            
            (c)
             the conditions of risk and the circumstances of time and place under which such derogations may be granted;  
            
            
            (d)
             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;  
            
            
            (e)
             the controls which will be carried out.   
            
            
            
            
            
            
                  Puissochet
               
               
                  Schintgen 
               
               
                  Gulmann 
               
            
                  Skouris
               
               
                  Colneric 
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
            
            
            
            
            
            
            
         
         
         Delivered in open court in Luxembourg on 16 October 2003. 
         
         
         
         
                  R. Grass 
               
               
                  V. Skouris  
               
            
         
         
         
                  Registrar
               
               
                  President
               
            
      
      
          1 –
            
             Language of the case: French.