Associazione Italiana per il World Wildlife Fund, Ente Nazionale per la Protezione Animali, Lega per l'Ambiente - Comitato Regionale, Lega Anti Vivisezione - Delegazione Regionale, Lega per l'Abolizione della Caccia, Federnatura Veneto and Italia Nostra - Sezione di Venezia v Regione Veneto.
Date: 1996-03-07
14. That objection must be dismissed.  It is clear from the actual wording of the order for reference that the national court is seeking an interpretation by the Court of Article 9 of the directive.  Provided that the questions submitted concern the interpretation of a provision of Community law, the Court gives its preliminary ruling without, in principle, having to look into the circumstances in which the national courts were prompted to submit the questions and envisage applying the provision of Community law which they have asked the Court to interpret (see the judgment in Joined Cases C-297/88 and C-197/89  Dzodzi  v  Belgium  [1990] ECR I-3763, paragraphs 35 and 39).
15. The matter would be different only if it were apparent either that the procedure provided for in Article 177 had been diverted from its true purpose and was being used in fact to lead the Court to give a ruling by means of a contrived dispute, or that the provision of Community law referred to the Court for interpretation was manifestly incapable of applying ( Dzodzi , cited above, paragraph 40).  That is not so in this case.
18. As a preliminary point, in applying the national law and in particular the provisions of a national law specifically introduced in order to implement a Community directive, the national court called upon to interpret and apply that law must do so, as far as possible, in the light of the wording and the purpose of the directive so as to achieve the result intended by the directive and thereby comply with the third paragraph of Article 189 of the Treaty (judgments in Case 14/83  Von Colson and Kamann  v  Land Nordrhein-Westfalen  [1984] ECR 1891, paragraph 26, and Case C-91/92  Faccini Dori  v  Recreb  [1994] ECR I-3325, paragraph 26).
19. Next, where by means of a directive the Community authorities have placed Member States under a duty to adopt a certain course of action, the effectiveness of such a measure would be diminished if persons were prevented from relying upon it in proceedings before the courts and national courts were prevented from taking it into consideration as an element of Community law (judgment in Case 8/81  Becker  v  Finanzamt Münster-Innenstadt  [1982] ECR 53, paragraph 23).  Consequently, wherever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied upon by an individual against any authority of a Member State where that State has either failed to implement the directive in national law by the end of the period prescribed or has failed to implement it correctly (judgment in Case 103/88  Fratelli Costanzo  v  Comune di Milano  [1989] ECR 1839, paragraphs 29 and 30).  Moreover, a national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provisions by legislative or other constitutional means (judgments in Case 106/77  Amministrazione delle Finanze dello Stato  v  Simmenthal  [1978] ECR 629 and Joined Cases C-13/91 and C-113/91  Debus  [1992] ECR I-3617, paragraph 32.)
20. In order to answer the question, it must be noted that the Court has already held with regard to the directive, in its judgment in Case 252/85  Commission  v  France  [1988] ECR 2243, paragraph 5, that while transposition into national law does not necessarily require the relevant provisions to be enacted in precisely the same words in a specific express legal provision, and a general legal context may be sufficient if it actually ensures the full application of the directive in a sufficiently clear and precise manner, faithful transposition becomes particularly important in a case such as this in which the management of the common heritage is entrusted to the Member States in their respective territories.
21. It is important also to bear in mind that the Court has stated that the possibility provided for in Article 9 of derogating from the restrictions on hunting, as well as from the other restrictions and prohibitions contained in Articles 5, 6 and 8 of the directive, is subject to three conditions.  First, the Member State must restrict the derogation to cases in which there is no other satisfactory solution.  Secondly, the derogation must be based on at least one of the reasons listed exhaustively in Article 9(1)(a), (b) and (c).  Thirdly, the derogation must comply with the precise formal conditions set out in Article 9(2), which are intended to limit derogations to what is strictly necessary and to enable the Commission to supervise them.  Although Article 9 therefore authorizes wide derogations from the general system of protection, it must be applied appropriately in order to deal with precise requirements and specific situations (judgments in Case 247/85  Commission  v  Belgium  [1987] ECR 3029, paragraph 7, and Case 262/85  Commission  v  Italy  [1987] ECR 3073, paragraph 7).
22. It has been stated that with regard to the conservation of wild birds, the criteria which the Member States must meet in order to derogate from the prohibitions laid down in the directive must be reproduced in specific national provisions (judgment in Case C-339/87  Commission  v  Netherlands  [1990] ECR I-851, paragraph 28).
23. Furthermore, it should be noted that in the  Commission  v  Italy  judgment cited above the Court had to give a ruling on the interpretation of Article 9 of the directive with respect to a national provision concerning hunting, according to which the regions could operate or authorize the operation, by means of specific regulations, of arrangements for capturing and selling, even outside the period when hunting was allowed, migratory birds of species to be specified from among those which might be hunted under that law, with a view to their being kept for use as live decoys in cover-shooting, or for recreational purposes in traditional fairs and markets.  In that judgment, the Court observed first that the provision concerned made no reference to Article 9(1), which provides that a derogation from Articles 7 and 8 of the directive may be granted only if there is no other satisfactory solution, and secondly that the provision of national law did not, contrary to the requirements of Article 9(2) of the directive, specify the means, arrangements or methods of capture authorized, the circumstances of time and place under which the derogations might be granted or the species covered by the derogations.  The Court stated that since the provision in question did not establish the criteria and conditions provided for in Article 9(2) of the directive or require the regions to take account of those criteria and conditions, it introduced an element of uncertainty as regards the obligations which the regions must observe when adopting their regulations.  Therefore, there was no guarantee that the capture of certain species of birds would be limited to the strict minimum, as required by Article 9(1)(c), that the period of capture would not coincide unnecessarily with periods in which the directive aims to provide special protection or that the means, arrangements or methods for capture were not large-scale, non-selective or capable of causing the local disappearance of a species.  It followed that the essential elements of Article 9 of the directive had not been transposed completely, clearly and unequivocally into the Italian rules ( Commission  v  Italy , cited above, paragraph 39).
24. The Court has also held that national legislation which declares the hunting of certain species open in principle, without prejudice to provisions to the contrary laid down by the regional authorities, does not satisfy the requirements of protection laid down by the directive and is contrary to the principle of legal certainty (judgment in Case C-157/89  Commission  v  Italy  [1991] ECR I-57, paragraphs 16 and 17).
25. Consequently, national legislation which authorizes the hunting of certain species of birds not included in the list in Annex II to the directive without, however, listing the criteria for derogation or clearly and specifically obliging the regions to take account of those criteria and to apply them, does not satisfy the conditions to which the derogations provided for by Article 9 of the directive are subject.
26. In the light of the foregoing, the answer to the question must be that Article 9 of the directive is to be interpreted as meaning that it authorizes the Member States to derogate from the general prohibition on hunting protected species laid down by 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).