Commission of the European Communities v Kingdom of Belgium.
Date: 1987-07-08
6 BEFORE EXAMINING THE VARIOUS COMPLAINTS SUBMITTED BY THE COMMISSION, THE PROVISIONS OF AND THE OBLIGATIONS ARISING UNDER THE DIRECTIVE SHOULD BE CLARIFIED IN SO FAR AS THEY ARE RELEVANT TO THE PRESENT CASE . IN THIS REGARD, IT MUST BE STATED AT THE OUTSET THAT, ACCORDING TO ARTICLE 1, THE DIRECTIVE RELATES TO THE CONSERVATION OF ALL SPECIES OF NATURALLY OCCURRING BIRDS IN THE WILD STATE IN THE EUROPEAN TERRITORY OF THE MEMBER STATES AND COVERS THE PROTECTION, MANAGEMENT AND CONTROL OF THOSE SPECIES AND LAYS DOWN RULES FOR THEIR EXPLOITATION . THE DIRECTIVE IS BASED ON THE CONSIDERATION THAT EFFECTIVE BIRD PROTECTION IS TYPICALLY A TRANSFRONTIER ENVIRONMENT PROBLEM ENTAILING COMMON RESPONSIBILITIES FOR THE MEMBER STATES ( THIRD RECITAL IN THE PREAMBLE ).
7 IN ORDER TO INSTITUTE AN EFFECTIVE SYSTEM OF PROTECTION THE DIRECTIVE LAYS DOWN THREE TYPES OF PROVISIONS . FIRST, IT PROVIDES FOR GENERAL PROHIBITIONS AGAINST THE KILLING, CAPTURING, DISTURBING, KEEPING AND MARKETING OF BIRDS AND ALSO AGAINST THE DESTRUCTION, DAMAGING OR REMOVAL OF THEIR NESTS AND EGGS ( ARTICLE 5 AND ARTICLE 6 ( 1 )*). SECONDLY, IT PROVIDES FOR DEROGATIONS FROM THOSE GENERAL PROHIBITIONS FOR THE BIRD SPECIES LISTED IN THE ANNEXES TO THE DIRECTIVE . THUS, PROVIDED THAT CERTAIN CONDITIONS AND LIMITS ARE LAID DOWN AND RESPECTED, MEMBER STATES MAY AUTHORIZE THE MARKETING OF THE SPECIES LISTED IN ANNEX III AND THE HUNTING OF THE SPECIES LISTED IN ANNEX II TO THE DIRECTIVE ( ARTICLE 6 ( 2 ), ( 3 ) AND ( 4 ) AND ARTICLE 7 ). IT FOLLOWS THAT, FOR THE BIRD SPECIES WHICH ARE NOT LISTED IN THOSE ANNEXES, OR IF THE CONDITIONS AND LIMITS PROVIDED FOR IN THE ABOVEMENTIONED ARTICLES ARE NOT OBSERVED, THE GENERAL PROHIBITIONS REMAIN APPLICABLE .
THIRDLY, ARTICLE 9 OF THE DIRECTIVE AUTHORIZES THE MEMBER STATES TO DEROGATE FROM THE GENERAL PROHIBITIONS AND FROM THE PROVISIONS CONCERNING MARKETING AND HUNTING . HOWEVER, THIS POSSIBILITY 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 .
8 IN THIS CONTEXT IT IS NECESSARY TO REFER TO ARTICLE 2 OF THE DIRECTIVE, WHICH REQUIRES THE MEMBER STATES TO TAKE THE REQUISITE MEASURES TO MAINTAIN THE POPULATION OF ALL BIRD SPECIES AT A LEVEL, OR TO ADAPT IT TO A LEVEL, WHICH CORRESPONDS IN PARTICULAR TO ECOLOGICAL, SCIENTIFIC AND CULTURAL REQUIREMENTS, WHILE TAKING ACCOUNT OF ECONOMIC AND RECREATIONAL REQUIREMENTS AND FROM WHICH IT IS THEREFORE CLEAR THAT THE PROTECTION OF BIRDS MUST BE BALANCED AGAINST OTHER REQUIREMENTS, SUCH AS THOSE OF AN ECONOMIC NATURE . THEREFORE, ALTHOUGH ARTICLE 2 DOES NOT CONSTITUTE AN AUTONOMOUS DEROGATION FROM THE GENERAL SYSTEM OF PROTECTION, IT NONE THE LESS SHOWS THAT THE DIRECTIVE TAKES INTO CONSIDERATION, ON THE ONE HAND, THE NECESSITY FOR EFFECTIVE PROTECTION OF BIRDS AND, ON THE OTHER HAND, THE REQUIREMENTS OF PUBLIC HEALTH AND SAFETY, THE ECONOMY, ECOLOGY, SCIENCE, FARMING AND RECREATION .
9 AS REGARDS THE TRANSPOSITION OF THE DIRECTIVE INTO NATIONAL LAW, IT MUST BE OBSERVED THAT THIS DOES NOT NECESSARILY REQUIRE THE PROVISIONS OF THE DIRECTIVE TO BE ENACTED IN PRECISELY THE SAME WORDS IN A SPECIFIC EXPRESS LEGAL PROVISION OF NATIONAL LAW; A GENERAL LEGAL CONTEXT MAY BE SUFFICIENT IF IT ACTUALLY ENSURES THE FULL APPLICATION OF THE DIRECTIVE IN A SUFFICIENTLY CLEAR AND PRECISE MANNER ( SEE THE JUDGMENT OF 23 MAY 1985 IN CASE 29/84 COMMISSION V FEDERAL REPUBLIC OF GERMANY (( 1985 )) ECR 1667 ). HOWEVER, A 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 .
FIRST COMPLAINT : THE LIST OF BIRDS WHICH MAY BE HUNTED
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 .
41 AS REGARDS THE APPLICATION OF ARTICLE 9 ( 1 ) ( C ), IT MUST THEREFORE BE OBSERVED FIRST OF ALL THAT ARTICLE 6 ( 1 ) OF THE ROYAL DECREES GIVES RISE TO AN UNCERTAIN AND AMBIGUOUS LEGAL SITUATION BY ALLOWING THE LIST OF BIRDS WHICH MAY BE HUNTED AND KEPT TO BE CHANGED AS AND WHEN THE COMPETENT ADMINISTRATION CONSIDERS FIT . THE GENERAL AND PERMANENT RULES LAID DOWN IN THE DECREES DO NOT GUARANTEE THAT THE NUMBER OF BIRDS WHICH MAY BE CAPTURED IS LIMITED TO SMALL QUANTITIES, THAT THE PERIOD DURING WHICH THEIR CAPTURE IS ALLOWED DOES NOT COINCIDE WITH PERIODS IN WHICH THE DIRECTIVE SEEKS TO PROVIDE PARTICULAR PROTECTION FOR BIRDS ( THE NESTING PERIOD AND THE VARIOUS STAGES OF BREEDING AND REARING ) OR THAT CAPTURE AND KEEPING ARE RESTRICTED TO CASES IN WHICH THERE IS NO OTHER SATISFACTORY SOLUTION, IN PARTICULAR THE POSSIBILITY THAT THE BIRD SPECIES CONCERNED MAY REPRODUCE IN CAPTIVITY . THE CRITERIA AND CONDITIONS LAID DOWN IN ARTICLE 9 OF THE DIRECTIVE ARE NOT THEREFORE FULLY TRANSPOSED INTO THE RULES CONCERNED . CONSEQUENTLY, THE BELGIAN GOVERNMENT MAY NOT RELY ON ARTICLE 9 ( 1 ) ( C ) OF THE DIRECTIVE .
56 IN THIS REGARD IT MUST BE NOTED THAT THE AIM OF THIS PROVISION OF THE DIRECTIVE IS NOT TO PREVENT THE THREAT OF MINOR DAMAGE . THE FACT THAT A CERTAIN DEGREE OF DAMAGE IS REQUIRED FOR THIS DEROGATION FROM THE GENERAL SYSTEM OF PROTECTION ACCORDS WITH THE DEGREE OF PROTECTION SOUGHT BY THE DIRECTIVE .