Commission of the European Communities v French Republic.
Date: 2000-12-07
15 Article R. 224-6 of the New Rural Code provides:
The minister responsible for hunting may, by order published at least 20 days before the date of its entry into force, authorise the hunting of waterfowl before the opening date for hunting in general:
1. in maritime hunting areas;
2. on rivers, streams, canals, reservoirs, lakes, ponds and undrained marshes, only shooting above the surface of the water being allowed.
20 In that connection it should be borne in mind that, according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that State at the end of the period laid down in the reasoned opinion (see, in particular, Case C-166/97 Commission v France [1999] ECR I-1719, paragraph 18).
23 In that connection, it must be made clear that Article 7(4) of the Wild Birds Directive seeks in particular to impose a prohibition of hunting of all species of wild birds during the rearing periods and the various stages of reproduction and dependency and, in the case of migratory species, during their return to their rearing grounds. Moreover, the Court has held that that article is designed to secure a complete system of protection in the periods during which the survival of wild birds is particularly under threat (see Case C-157/89 Commission v Italy [1991] ECR I-57, paragraph 14, and Case C-435/92 APAS v Préfets de Maine-et-Loire and Loire-Atlantique [1994] ECR I-67, paragraph 9). Accordingly, protection against hunting activities cannot be confined to the majority of the birds of a given species, as determined by average reproductive cycles and migratory movements (see the cases cited above, Commission v Italy, paragraph 14, and APAS v Préfets de Maine-et-Loire and Loire-Atlantique, paragraph 10).
53 Second, the Court has indeed held that the transposition of a directive into domestic law does not necessarily require the provisions of the directive to be enacted in precisely the same words in a specific, express provision of national law and that a general legal context may be sufficient if it actually ensures the full application of the directive in a sufficiently clear and precise manner. However, the Court has also held that faithful transposition becomes particularly important in the case of the Wild Birds Directive where management of the common heritage is entrusted to the Member States in their respective territories (see, in particular, Case 262/85 Commission v Italy [1987] ECR 3073, paragraph 9).
55 In so far as domestic law contains no provision requiring the prefects of those departments to take account, in adopting the annual order for opening of the hunting season, of the prohibition of hunting any species of bird during the sensitive periods mentioned in paragraph 23 of this judgment, that law is subject to a degree of legal uncertainty as regards the obligations to be complied with by prefects in adopting measures. As a result, there is no guarantee that the hunting of wild birds will be proscribed during the rearing period or the various stages of reproduction and dependence or, in the case of migratory species, during their return to their rearing grounds (see, to that effect, Case 262/85 Commission v Italy, cited above, paragraph 39).
56 It follows that essential provisions of the Wild Birds Directive, such as those of the second and third sentences of Article 7(4), have not in any event been completely, clearly and unambiguously transposed into the French rules (see, to that effect, Case 262/85 Commission v Italy, cited above, paragraph 39).