Commission of the European Communities v Republic of Finland.
Date: 2005-12-15
31. However, Article 9(1)(c) of the Directive permits authorisation by way of derogation, in compliance with the conditions set out in that provision, of the hunting of the species listed in Annex II thereto during the periods referred to in Article 7(4) and thus in particular during the rearing season and during the various stages of reproduction (see, to that effect, Case C-182/02 Ligue pour la protection des oiseaux and Others  [2003] ECR I-12105, paragraphs 9 to 11, and Case C‑135/04 Commission  v Spain  [2005] ECR I-0000, paragraph 17).
32. The conditions which must be met for such hunting to be authorised under Article 9(1)(c) of the Directive include the absence of any other satisfactory solution (see Ligue pour la protection des oiseaux and Others , paragraph 15, and C‑135/04 Commission  v Spain , paragraph 18).
33. That condition cannot be considered to have been satisfied when the hunting season under a derogation coincides, without need, with periods in which the Directive aims to provide particular protection. There would be no such need, in particular, if the sole purpose of the derogation authorising hunting were to extend the hunting seasons for certain species of birds in territories which they already frequent during the hunting seasons fixed in accordance with Article 7 of the Directive (see Ligue pour la protection des oiseaux and Others , paragraph 16, and C‑135/04 Commission  v Spain , paragraph 19).
35. As regards eider, the Court notes that it is apparent from the ornithological study carried out by the Riista ja kalatalouden tutkimuslaitos (Institute for the Study of Game and Fishing), referred to by the parties (‘the study’), that a not inconsiderable number of specimens of that species is present in the spring hunting territories from early autumn onwards. As to the Finnish Government’s assertion that the individuals of that species present in the autumn in those territories are females or chicks born that year, that assertion is not supported by any evidence, as the Finnish Government moreover acknowledges. Lastly, 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.
39. In those circumstances, the Court finds that the Finnish Government has not proven that the spring hunting of golden-eye and tufted duck fulfils the condition that there be no other satisfactory solution, as referred to in Article 9(1)(c) of the Directive.
40. As to the spring hunting of goosander, which is justified essentially by the need to ensure the putting in place by humans, in particular hunters, of nesting-boxes which are essential for that species’ reproduction, suffice it to refer to paragraphs 38 and 39 of this judgment, which apply mutatis mutandis to this point.
43. Regarding, lastly, long-tailed duck, a species which the Commission unfortunately omitted to refer to in the form of order sought in its application, although in that same application it specifically criticised the defendant Member State for having authorised the spring hunting of that species without the condition that there be no other satisfactory solution having been fulfilled, it is not disputed that it cannot be hunted in the autumn in the geographical areas open for spring hunting.
44. The Court notes in this connection that a measure consisting in authorising the hunting in the autumn, or in the spring, of other species of aquatic birds present in those areas by way of replacement for the spring hunting of long-tailed duck cannot be regarded as another satisfactory solution within the meaning of Article 9(1)(c) of the Directive. Such a solution would risk rendering that provision nugatory, at least partially, because it would allow in certain territories for prohibitions on hunting certain species of birds, even though hunting in small numbers might, in theory, not jeopardise the maintenance of their populations at a satisfactory level and, therefore, constitute judicious use of those species (see, to that effect, Ligue pour la protection des oiseaux and Others , paragraph 17). Moreover, unless all bird species are considered to be equivalent for the purposes of hunting, that solution would, in any event, be a source of legal uncertainty, because the basis on which it may be considered that the hunting of a given species can replace the hunting of another species is not clear from the applicable legislation.
51. It must be borne in mind that hunting is not to be authorised under Article 9(1)(c) of the Directive unless it applies only to certain birds in small numbers (see Ligue pour la protection des oiseaux and Others , paragraph 15).
53. In that regard, the Commission’s paper, entitled ‘Second report on the application of Directive 79/409/EEC on the conservation of wild birds’ (COM(93) 572 final of 24 November 1993), indicates that, according to the work of the ORNIS committee, ‘small numbers’ should be understood to mean any sample of less than 1% of the total annual mortality rate of the population in question (average value) for those species which are not to be hunted and a sample in the order of 1% for those species which may be hunted, with ‘population in question’ being understood, with regard to migratory species, to mean 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.
54. Although it is true that the criterion of small numbers as defined by the ORNIS committee is not legally binding, in this instance it can, by reason of the acknowledged scientific value of that committee’s opinions and the failure to adduce any scientific evidence to the contrary, be used by the Court as a basis of reference for assessing whether the derogation granted by the defendant Member State under Article 9(1)(c) of the Directive fulfils the condition that the capture of the birds in question must be carried out in small numbers (see, inter alia, Case C‑79/03 Commission  v Spain  [2004] ECR I-11619, paragraph 41).
60. Consequently, the Court finds that, since it has failed to establish that, in the context of the spring hunting of aquatic birds in mainland Finland and the province of Åland:
– the condition laid down in Article 9(1)(c) of the Directive for the purpose of a derogation, that there be no satisfactory solution other than spring hunting, was fulfilled in respect of eider, golden-eye, red-breasted merganser, goosander, velvet scoter and tufted duck; and that
– the condition laid down in that same provision for the purpose of a derogation, relating to the fact that hunting must concern only the taking of birds in small numbers, was fulfilled in respect of eider, goosander, red-breasted merganser and velvet scoter;
the Republic of Finland has failed to fulfil its obligations under that directive.