Commission of the European Communities v Kingdom of the Netherlands.
Date: 1990-03-15
6 In this connection reference should be made to the third paragraph of Article 189 of the Treaty according to which a directive is to be binding, as to the result to be achieved, upon each Member State to which it is addressed, but leaves to the national authorities the choice of form and methods . In its judgment of 23 May 1985 in Case 29/84 Commission v Germany (( 1985 )) ECR 1661, the Court stressed that it followed from that provision that the implementation of a directive does not necessarily require legislative action in each Member State . As far as Directive 79/409 is concerned, it appears from the Court' s case-law, as confirmed in particular by the judgment of 27 April 1988 in Case 252/85 Commission v France (( 1988 )) ECR 2243, that the transposition of a directive into national law does not necessarily require the provisions of the directive to be enacted in precisely the same words in a specific express legal provision, 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 .
22 In that connection, it should be emphasized that the prohibitions of means of capture which are laid down in the directive must be laid down in legislative provisions . The fact that a practice incompatible with the directive is not carried on does not release the Member State in question from its obligation to adopt laws or administrative provisions in order to ensure that the provisions of the directive are adequately transposed . In view of the principle of legal certainty the relevant prohibitions must be reproduced in mandatory legal provisions . The second complaint must therefore be upheld .
Third complaint : the seeking, collection and possession of the eggs of certain species of birds
25 The Netherlands Government' s argument cannot be upheld . In fact, it is common ground that the seeking, the collection and the possession of eggs of the wood pigeon, the carrion crow, the jackdaw, the jay and the magpie, which are authorized under the national legislation, are contrary to Article 5(c ) of the directive . As has been emphasized above, the fact that a number of activities incompatible with the prohibitions contained in the directive are unknown in a particular Member State cannot justify the absence of appropriate legal provisions . In order to secure the full implementation of directives in law and not only in fact, Member States must establish a specific legal framework in the area in question . The third complaint must therefore be regarded as well founded .
Fourth complaint : derogations concerning the prevention of damage
28 That argument put forward by the Netherlands Government must be rejected . It must be observed that neither serious damage nor any of the other reasons on which derogations may be based that are set out in Article 9 of the directive appear in Articles 53 and 54 of the Jachtwet . As has been pointed out above, it appears from the case-law of the Court on the conservation of wild birds ( see the judgment in Commission v Germany, cited above ), that 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, since a faithful transposition becomes particularly important in a case where the management of the common heritage is entrusted to the Member States in their respective territories .
29 The explanation that the requirements as to protection set out in Article 9 of the directive are observed in fact by ministerial practice with regard to the use of hunting permits cannot be accepted, since, as the Court reiterated in the judgment of 23 February 1988 in Case 429/85 Commission v Italy (( 1988 )) ECR 843, mere administrative practices, which by their nature may be changed at will by the authorities, cannot be regarded as constituting proper compliance with the obligation on Member States to which a directive is addressed, pursuant to Article 189 of the Treaty . The fourth complaint is therefore well founded .
Fifth complaint : hunting from aircraft
32 In that connection, it must be observed that, as has already been stated, the fact that in a Member State a particular means of hunting is unknown does not constitute a reason for not transposing that prohibition into the national legal order . Consequently, the fifth complaint must be upheld .
Sixth complaint : derogations for hunting dog trials