European Commission v Republic of Finland.
Date: 2020-04-23
26


The Commission claims that that information is confirmed by the work of the ORNIS Committee, which is the committee for Adaptation to Technical and Scientific Progress under the Birds Directive, instituted pursuant to Article 16 of that directive and consisting of Member State representatives, the scientific value of its work having already been recognised by the Court (judgment of 8 June 2006, WWF Italia and Others, C‑60/05, EU:C:2006:378, paragraphs 26 and 27 and the case-law cited).
30


Furthermore, the data reported under Article 12 of the Birds Directive by both the Republic of Finland and its neighbouring Member State, the Kingdom of Sweden, which is relevant for a migratory species, shows declining populations of common eiders in the short term and in the long term. The Commission acknowledges that there are multiple reasons for that decline. Nonetheless, it points out that the judgments of 8 June 2006, WWF Italia and Others (C‑60/05, EU:C:2006:378, paragraph 32), and of 10 September 2009, Commission v Malta (C‑76/08, EU:C:2009:535, paragraph 59), both concerning ‘judicious use’ within the meaning of Article 9(1) of the Birds Directive, exclude a derogation under Article 9(1)(c) thereof whenever it is not ensured that the population in question is maintained at a ‘satisfactory level’, irrespective of whether hunting contributes to the unfavourable conservation status of the population or not. In the Commission’s view it would be inappropriate to allow those populations to be hunted, even if hunting did not cause or even contribute to that unfavourable conservation status.
31


In addition, the Commission disputes the Republic of Finland’s view that the grant of the contested authorisations is justified under Article 16(1) of the Habitats Directive in case of unfavourable conservation status and, in accordance with the judgment of 14 June 2007, Commission v Finland (C‑342/05, EU:C:2007:341, paragraph 29), ‘remains possible by way of exception where it is duly established that [such authorisations] are not such as to worsen the unfavourable conservation status of those populations or to prevent their restoration at a favourable conservation status’. Not only has the Court never applied that exception in the context of Article 9(1)(c) of the Birds Directive, which contains different conditions and is structured differently from Article 16(1) of the Habitats Directive, but, more importantly, the Republic of Finland has not duly established that the contested authorisations have only ‘neutral’ effects on the relevant common eider population. On the contrary, scientists observed, with regard to the effect of common eider hunting, that broken pair bonds contribute to the long-term reduction of the fecundity of female common eiders in a population where male common eiders are repeatedly removed due to spring hunting.
32


Secondly, the Republic of Finland has failed to demonstrate that spring hunting is necessary for predator control and therefore constitutes ‘judicious use’. While that Member State had already argued, in the proceedings that gave rise to the judgment of 15 December 2005, Commission v Finland (C‑344/03, EU:C:2005:770), that spring hunting of common eiders was justified because hunters improved rearing conditions by eliminating small predators in the breeding areas, the Court, in paragraph 35 of that judgment, rejected that argument by pointing out that ‘it is not apparent that [an environmental management] function can be fulfilled only if the common eider hunting season is open in the spring’.
45


In that regard, contrary to the Commission’s assertions, the clarification in paragraph 35 of the judgment of 15 December 2005, Commission v Finland (C‑344/03, EU:C:2005:770), that ‘although it is true that hunters perform a useful function in environmental management by hunting small predators in the spring so that the eider’s rearing can produce better results, it is not apparent that that function can be fulfilled only if the eider hunting season is open in the spring’ was made with regard to the concept of ‘the absence of alternative solution’ and the Court considered implicitly but surely that hunters would still have an incentive to carry out predator control.
46


In the second place, with regard to the condition relating to ‘small numbers’, it follows from the judgments of 9 December 2004, Commission v Spain (C‑79/03, EU:C:2004:782, paragraph 36), and of 15 December 2005, Commission v Finland (C‑344/03, EU:C:2005:770, paragraph 53), that ‘the population in question’, with regard to migratory species, must be understood as ‘the population of those regions from which come the main contingents passing through the region to which the derogation applies during its period of application’. Since the Court formulated no reservations with regard to that definition, it is clear that the concept of ‘migratory species’ refers to the biological behaviour of the species concerned and does not imply that the species is ‘on migration’ and, therefore, moving at the time of the hunt. A bird species is either sedentary or migratory and it would not cease to be either one or the other solely because the birds of the species concerned are not ‘on migration’.
48


In its reply, and with regard to ‘judicious use’, the Commission specifies, first, that the interpretation advocated by the Republic of Finland contravenes the Court’s case-law arising from its judgments of 8 June 2006, WWF Italia and Others (C‑60/05, EU:C:2006:378, paragraph 32), and of 10 September 2009, Commission v Malta (C‑76/08, EU:C:2009:535, paragraph 59), according to which ‘derogations under Article 9 of the [Birds] Directive may be granted only if it is ensured that the population of the species concerned is maintained at a satisfactory level. If that condition is not fulfilled, hunting of birds cannot, in any event, be considered [to be] judicious’. Secondly, the Commission insists on the fact that the derogation system set out in Article 9(1)(c) of the Birds Directive is more stringent than that in Article 16 of the Habitats Directive. By specifically limiting Article 9(1)(c) of the Birds Directive to cases of ‘judicious use’, the EU legislature intended to submit that derogation provision to a stricter requirement, which limits derogations to cases of bird populations at a satisfactory level. Thirdly, declining population trends of a given species are obviously a relevant factor for determining whether the population level is satisfactory or not. Moreover, to the extent that a Member State does not ensure that the population in question is maintained at a ‘satisfactory level’, spring hunting cannot constitute ‘judicious use’, irrespective of whether or not hunting is the primary cause of decline in that population.
51


Secondly, the argument that scientific literature supports spring hunting of male common eiders because the population is male-dominated has no factual basis, since the literature recommends limiting hunting to mainly male common eiders during the winter. In particular, that argument contradicts the Court’s case-law according to which a biological species is defined as the totality of all individual beings that form a reproducing community with the result that the species must be protected as a whole (judgment of 12 July 2007, Commission v Austria, C‑507/04, EU:C:2007:427, paragraph 235).
58


If the question of whether a Member State has failed to fulfil its obligations is determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion, the subject matter of an action for failure to fulfil obligations may extend to events which took place after the reasoned opinion, provided that they are of the same kind as the events to which the opinion referred and constitute the same conduct (see, to that effect, judgment of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraphs 40 and 43 and the case-law cited).
62


Consequently, that season forms part of the periods during which Article 7(4) of the directive prohibits, in principle, all hunting of common eiders (see, to that effect, judgment of 12 July 2007, Commission v Austria, C‑507/04, EU:C:2007:427, paragraph 195).
65


In that regard, it is important to note that the Court has already held that the hunting of wild birds for recreational purposes during the periods mentioned in Article 7(4) of the Birds Directive may constitute ‘judicious use’ authorised by Article 9(1)(c) of the directive (see, to that effect, judgment of 16 October 2003, Ligue pour la protection des oiseaux and Others, C‑182/02, EU:C:2003:558, paragraph 11 and the case-law cited).
66


It must also be noted, with regard to a derogation system such as that provided for in Article 9 of the Birds Directive, which must be interpreted strictly and impose on the authority taking the decision the burden of proving that those conditions are present for each derogation, that Member States are required to ensure that all action affecting the protected species is authorised only on the basis of decisions containing a clear and sufficient statement of reasons which refers to the reasons, conditions and requirements laid down in that article (see, to that effect, judgment of 8 June 2006, WWF Italia and Others, C‑60/05, EU:C:2006:378, paragraph 34).
67


It is apparent from the provisions of Article 9 of the Birds Directive, which refer to the strictly supervised conditions for the derogation set out therein and to the selective basis on which birds are captured, and, moreover, from the general principle of proportionality, that the derogation of which a Member State intends to make use must be proportionate to the needs which justify it (judgment of 10 September 2009, Commission v Malta, C‑76/08, EU:C:2009:535, paragraph 57).
68


The Court thus held that derogations under Article 9 of the Birds Directive may be granted only if it is ensured that the population of the species concerned is maintained at a ‘satisfactory level’ and, if that condition is not fulfilled, hunting of birds cannot, in any event, be considered to be judicious and, accordingly, acceptable (see, to that effect, judgments of 8 June 2006, WWF Italia and Others, C‑60/05, EU:C:2006:378, paragraph 32, and of 10 September 2009, Commission v Malta, C‑76/08, EU:C:2009:535, paragraph 59).
70


In that regard, it is important to note that the evidence that the conditions to be met to derogate from the system of protection of that directive must be based on well-established scientific knowledge (see, to that effect, judgment of 15 December 2005, Commission v Finland, C‑344/03, EU:C:2005:770, paragraph 54 and the case-law cited). The Court has already held that the best relevant knowledge must be available to the authorities at the time they grant the authorisations (see, with regard to protected species covered by the Habitats Directive, judgments of 7 September 2004, Waddenvereniging and Vogelbeschermingsvereniging, C‑127/02, EU:C:2004:482, paragraphs 52 and 61, and of 10 October 2019, Luonnonsuojeluyhdistys Tapiola, C‑674/17, EU:C:2019:851, paragraph 51). Those considerations apply also with regard to Article 9(2) of the Birds Directive.
84


It must also be added, with regard to the interpretation of the Birds Directive and of the Habitats Directive that while the Court’s case-law has recognised, for the latter, the possibility of granting derogations in cases of unfavourable conservation status, first, the grant of such derogations occurs by way of exception only and, secondly, such a grant must be assessed in the light of the precautionary principle (see, to that effect, with regard to the Habitats Directive, judgment of 10 October 2019, Luonnonsuojeluyhdistys Tapiola, C‑674/17, EU:C:2019:851, paragraphs 68 and 69 and the case-law cited). It follows that, even if both directives are to be interpreted in a way that includes their respective specific features, that interpretation cannot be regarded as diverging since, subject to their specific features, that interpretation contains similar considerations relating to, inter alia, their respective protection system.
85


With regard to the management plans adopted and implemented in Finland in 2017 and 2018, which allegedly have their basis in the Guidance document, it is important to note that if that document has no binding legal force it may be used by the Court as a baseline. The Guidance document specifies that plans that may be put in place have no ‘separate legal status’ for the purposes of the Birds Directive. In that regard, it should also be noted that the Court has repeatedly found that while economic and recreational requirements are referred to in Article 2 of the directive, that provision does not constitute an autonomous derogation from the general system of protection established by the Birds Directive (judgments of 8 July 1987, Commission v Belgium, 247/85, EU:C:1987:339, paragraph 8; of 8 July 1987, Commission v Italy, 262/85, EU:C:1987:340, paragraph 8; and of 28 February 1991, Commission v Germany, C‑57/89, EU:C:1991:89, paragraph 22).
86


Lastly, if, in the context of the examination of the condition relating to the absence of another satisfactory solution, set out in Article 9(1)(c) of the Birds Directive, the Court recognised, in paragraph 35 of the judgment of 15 December 2005, Commission v Finland (C‑344/03, EU:C:2005:770), that, ‘although it is true that hunters perform a useful function in environmental management, by hunting small predators in the spring so that the eider’s rearing can produce better results, it is not apparent that that function can be fulfilled only if the eider hunting season is open in the spring’, that consideration applies so long as, as noted by the Commission, a Member State does not ensure that the population in question is maintained at a ‘satisfactory level’. Moreover, even if it were established that the positive effects on the population of a protected species resulting from a management plan counteract the negative effects introduced by hunting that population, Member States are required, as is apparent from recital 6 of the Birds Directive, to take measures that apply to the various factors which may affect the numbers of birds of the species concerned.
89


With regard to that condition, it is appropriate to note that it is apparent from the Court’s case-law that, if the hunting of birds authorised by way of derogation does not ensure that the population of the species concerned is maintained at a satisfactory level, that condition cannot be considered to be met (see, to that effect, judgment of 21 June 2018, Commission v Malta, C‑557/15, EU:C:2018:477, paragraph 66).
90


Furthermore, it is important to recall that the Court has already held that ‘it must be considered that, on the basis of current scientific knowledge, “small numbers”, within the meaning of Article 9(1)(c) of the [Birds Directive], should be understood as … a sample in the order of 1% for those species which may be hunted, and “population in question” is to be understood, with regard to migratory species, as the population of those regions from which come the main contingents passing through the region to which the derogation applies during its period of application’ (judgment of 21 June 2018, Commission v Malta, C‑557/15, EU:C:2018:477, paragraph 63 and the case-law cited).