WWF Italia and Others v Regione Lombardia.
Date: 2006-06-08
18. In that regard, it must be borne in mind that, in accordance with settled case-law, although in a reference for a preliminary ruling the Court cannot give a ruling either on questions which fall within the national law of the Member States or on the compatibility of national provisions with Community law, it can, however, supply a ruling on the interpretation of Community law so as to enable the national court to decide the case before it (see, inter alia, Case C-150/88 Parfümerie-Fabrik 4711  [1989] ECR I-3891, paragraph 12, and Case C-124/99 Borawitz [2000] ECR I-7293, paragraph 17).
19. The matter would admittedly be different if it were apparent that the provision of Community law referred to the Court for interpretation was incapable of applying (see, inter alia, Joined Cases C-297/88 and C-197/89 Dzodzi [1990] ECR I-3763, paragraph 40). That is, however, not the case.
24. In that respect, it should be noted, first, that the Court has held that the criteria on the basis of which the Member States may derogate from the prohibitions laid down by the Directive must be set out in national provisions which are sufficiently clear and precise, given that a faithful transposition becomes particularly important in a case in which the management of the common heritage is entrusted to the Member States in respect of their respective territories (see to that effect, inter alia, Case 247/85 Commission v Belgium [1987] ECR 3029, paragraph 9, and Case 252/85 Commission v France [1988] ECR 2243, paragraph 5).
25. It is also important to note that, in exercising their powers concerning the grant of derogations, in accordance with Article 9 of the Directive the authorities of the Member States must take account of various criteria which relate to geographic, climatic, environmental and biological factors and, in particular, to the situation regarding the species’ reproduction and total annual mortality rate owing to natural causes.
26. As to those criteria, the Court pointed out in Case C-79/03 Commission v Spain [2004] ECR I-11619, paragraph 36, and Case C-344/03 Commission v Finland [2005] ECR I-0000, paragraph 53, that, according to the document entitled ‘Second report [of the Commission] on the application of Directive 79/409/EEC on the conservation of wild birds’ of 24 November 1993 (COM(93) 572 final), ‘small numbers’ are 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. The Court stated in that regard that those quantities are based on the work of the ORNIS Committee for the Adaptation to Technical and Scientific Progress under the Directive, instituted under Article 16 of the latter and consisting of representatives of the Member States.
27. It is also clear from the judgments cited above in Commission v Spain , paragraph 41, and Commission v Finland , paragraph 54, that although the percentages referred to above are not legally binding, they can none the less constitute, by reason of the scientific value of the work of the ORNIS Committee and the absence before the Court of any element of scientific proof to the contrary, a basis of reference for assessing whether a derogation granted under Article 9(1)(c) of the Directive complies with that provision (see by analogy, in respect of the relevance of scientific data in the field of ornithology, Case C-3/96 Commission  v Netherlands  [1998] ECR I-3031, paragraphs 69 and 70, and Case C-374/98 Commission v France [2000] ECR I-10799, paragraph 25).
28. It follows that, irrespective of the internal allocation of powers prescribed by the national legal system, the Member States are required to provide for a legislative and regulatory framework ensuring that the hunting of birds is carried out only in compliance with the condition relating to ‘small numbers’ laid down in Article 9(1)(c) of the Directive, and on the basis of strict scientific data, irrespective of the species concerned.
29. The answer to the first question must therefore be that Article 9(1)(c) of the Directive requires the Member States, irrespective of the internal allocation of powers prescribed by the national legal system, upon adoption of measures implementing that provision to ensure that, in all cases of application of the derogation provided for therein and for all the protected species, authorised hunting does not exceed a ceiling consistent with the restriction on that hunting to small numbers imposed by that provision, and that ceiling must be determined on the basis of strict scientific data.
The second question
32. In that respect, the Court has stated that derogations under Article 9 of the 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 judicious and, accordingly, acceptable for the purposes of the 11th recital in the preamble to the Directive (see, to that effect, Case C-182/02 Ligue pour la protection des oiseaux and Others [2003] ECR I-12105, paragraph 17).
33. In those circumstances, and in order to permit the competent authorities to resort to the derogations laid down in Article 9 of the Directive only in a manner which complies with Community law, the national legislative and regulatory framework must be designed in such a way that the application of the derogating provisions set out there is consonant with the principle of legal certainty.
34. As is apparent from Case C-118/94 Associazione italiana per il WWF and Others [1996] ECR I-1223, paragraphs 23, 25 and 26, the relevant national legislation applicable must specify the criteria for the derogation in a clear and precise manner and require the authorities responsible for applying them to take account of those criteria. In respect of exceptional arrangements, 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, the 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 Article 9(1) and (2) of the Directive.
36. The answer to the second question must therefore be that national implementing provisions concerning the ‘small numbers’ referred to in Article 9(1)(c) of the Directive must enable the authorities responsible for authorising hunting derogations in respect of birds of a given species to rely on criteria which are sufficiently precise as to the quantitative ceilings to be complied with.
The third question
38. In that respect, it should be borne in mind that the Court has held that, in the field of the conservation of wild birds, 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 (see, inter alia, Case C-339/87 Commission v Netherlands [1990] ECR I-851, paragraph 28).
39. It follows, moreover, from Case C-157/89 Commission v Italy  [1991] ECR I-57, paragraphs 16 and 17, that a situation in which national provisions implementing the Directive do not ensure that the authorities within a State which are responsible for applying them are required to take account of those criteria would be contrary to the principle of legal certainty.
43. In that respect, it should be observed that the Court has held, in paragraph 28 of Case 252/85 Commission v France , that national implementing legislation must guarantee that the hunting of birds is carried out on a strictly controlled and selective basis. That means that effective controls are exercised during the periods referred to by the decisions derogating from the system of protection laid down by the Directive.
47. The answer to the fourth question must therefore be that the obligation on the Member States to ensure that hunting of birds is carried out only in ‘small numbers’, in accordance with Article 9(1)(c) of the Directive, requires that the administrative procedures provided for are organised in such a way that both the decisions of the competent authorities authorising hunting derogations and the manner in which those decisions are applied are subject to effective control exercised in a timely manner.
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