Commission of the European Communities v Republic of Malta.
Date: 2009-09-10
23. Furthermore, making the initiation by the Commission of proceedings for a declaration of failure to fulfil obligations subject to the prior communication of a report by the Member State concerned would, in any event, be likely to harm the role of the Commission as guardian of the Treaties, by virtue of which it alone is empowered to decide whether it is appropriate to bring such proceedings and to determine the grounds on which they should be initiated (see, inter alia, to that effect, Joined Cases C‑20/01 and C‑28/01 Commission  v Germany  [2003] ECR I‑3609, paragraph 30).
48. Nevertheless, provided that the conditions laid down in Article 9(1) of the Directive are complied with, the Member States may derogate from their obligations under Article 7 thereof.  It is a derogation which must, accordingly, be interpreted strictly and in respect of which, in order for it to be implemented, the Member States must establish that the conditions for its application are met (see, to that effect, Case C‑60/05 WWF Italia and Others  [2006] ECR I‑5083, paragraph 34).
50. In that regard, the Court has consistently held that that condition is not satisfied when the hunting season under a derogation coincides, without need, with periods in which the Directive aims to provide particular protection. There is no such need, in particular, if the sole purpose of the derogation authorising hunting is 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 Case C‑135/04 Commission  v Spain  [2005] ECR I‑5261, paragraph 19).
51. It follows from the case-law that there is also no such need when the species concerned are actually present in autumn in the areas open for spring hunting, even if they are present in considerably smaller numbers than in the spring, provided that those numbers are not inconsiderable (see, to that effect, Commission  v Finland , paragraphs 35 and 43).
56. The Community legislature, by using the expression ‘other satisfactory solution’, did not intend to prevent use of the derogation laid down in Article 9(1)(c) of the Directive where any opportunity whatsoever exists of hunting during the open seasons authorised under Article 7 of the Directive, but sought to permit derogations from that provision, only so far as necessary, where hunting opportunities during those periods, in the present case in the autumn, are so limited as to upset the balance sought by the Directive between the protection of species and certain leisure activities.
57. It is apparent, however, from the provisions of Article 9 of the Directive, which refer to the strictly supervised conditions for that derogation and 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.
59. Thus, the Court has stated that derogations under Article 9 of the Directive may be used only if it is ensured that the population of the species concerned is maintained at a satisfactory level and that, if that condition is not fulfilled, hunting of birds cannot, in any event, be considered judicious and, accordingly, acceptable exploitation for the purposes of the 11th recital in the preamble to the Directive ( WWF Italia and Others , paragraph 32).