Commission of the European Communities v Italian Republic.
Date: 1987-07-08
7 IN ORDER TO INSTITUTE AN EFFECTIVE SYSTEM OF PROTECTION THE DIRECTIVE LAYS DOWN THREE TYPES OF PROVISIONS . FIRST, IT PROVIDES FOR GENERAL PROHIBITIONS AGAINST THE KILLING, CAPTURING, DISTURBING, KEEPING AND MARKETING OF BIRDS AND ALSO AGAINST THE DESTRUCTION, DAMAGING OR REMOVAL OF THEIR NESTS AND EGGS ( ARTICLE 5 AND ARTICLE 6 ( 1 )*). FURTHERMORE, ARTICLE 8 PROHIBITS THE USE OF ALL MEANS, ARRANGEMENTS OR METHODS USED FOR THE LARGE-SCALE OR NON-SELECTIVE CAPTURE OR KILLING OF BIRDS, IN PARTICULAR THE USE OF THOSE LISTED IN ANNEX IV ( A ) TO THE DIRECTIVE . SECONDLY, THE DIRECTIVE PROVIDES FOR DEROGATIONS FROM THOSE GENERAL PROHIBITIONS FOR THE BIRD SPECIES LISTED IN THE ANNEXES TO THE DIRECTIVE . THUS, PROVIDED THAT CERTAIN CONDITIONS AND LIMITS ARE LAID DOWN AND RESPECTED, MEMBER STATES MAY AUTHORIZE THE MARKETING OF THE SPECIES LISTED IN ANNEX III AND THE HUNTING OF THE SPECIES LISTED IN ANNEX II TO THE DIRECTIVE ( ARTICLE 6 ( 2 ), ( 3 ) AND ( 4 ) AND ARTICLE 7 ). IT FOLLOWS THAT, FOR THE BIRD SPECIES WHICH ARE NOT LISTED IN THOSE ANNEXES, OR IF THE CONDITIONS AND LIMITS PROVIDED FOR IN THE ABOVEMENTIONED ARTICLES ARE NOT FULFILLED, THE GENERAL PROHIBITIONS REMAIN APPLICABLE . THIRDLY, ARTICLE 9 OF THE DIRECTIVE AUTHORIZES THE MEMBER STATES TO DEROGATE FROM THE GENERAL PROHIBITIONS AND FROM THE PROVISIONS CONCERNING MARKETING AND HUNTING . HOWEVER, THIS POSSIBILITY IS SUBJECT TO THREE CONDITIONS : FIRST, THE MEMBER STATE MUST RESTRICT THE DEROGATION TO CASES IN WHICH THERE IS NO OTHER SATISFACTORY SOLUTION; SECONDLY, THE DEROGATION MUST BE BASED ON AT LEAST ONE OF THE REASONS LISTED EXHAUSTIVELY IN ARTICLE 9 ( 1 ) ( A ), ( B ) AND ( C ); THIRDLY, THE DEROGATION MUST COMPLY WITH THE PRECISE FORMAL CONDITIONS SET OUT IN ARTICLE 9 ( 2 ), WHICH ARE INTENDED TO LIMIT DEROGATIONS TO WHAT IS STRICTLY NECESSARY AND TO ENABLE THE COMMISSION TO SUPERVISE THEM . ALTHOUGH ARTICLE 9 THEREFORE AUTHORIZES WIDE DEROGATIONS FROM THE GENERAL SYSTEM OF PROTECTION, IT MUST BE APPLIED APPROPRIATELY IN ORDER TO DEAL WITH PRECISE REQUIREMENTS AND SPECIFIC SITUATIONS .
8 IN THIS CONTEXT IT IS NECESSARY TO REFER TO ARTICLE 2 OF THE DIRECTIVE WHICH REQUIRES THE MEMBER STATES TO TAKE THE REQUISITE MEASURES TO MAINTAIN THE POPULATION OF ALL BIRD SPECIES AT A LEVEL, OR TO ADAPT IT TO A LEVEL, WHICH CORRESPONDS IN PARTICULAR TO ECOLOGICAL, SCIENTIFIC AND CULTURAL REQUIREMENTS, WHILE TAKING ACCOUNT OF ECONOMIC AND RECREATIONAL REQUIREMENTS AND FROM WHICH IT IS THEREFORE CLEAR THAT THE PROTECTION OF BIRDS MUST BE BALANCED AGAINST OTHER REQUIREMENTS . THEREFORE, ALTHOUGH ARTICLE 2 DOES NOT CONSTITUTE AN AUTONOMOUS DEROGATION FROM THE GENERAL SYSTEM OF PROTECTION, IT NONE THE LESS SHOWS THAT THE DIRECTIVE TAKES INTO CONSIDERATION, ON THE ONE HAND, THE NECESSITY FOR EFFECTIVE PROTECTION OF BIRDS AND, ON THE OTHER HAND, THE REQUIREMENTS OF PUBLIC HEALTH AND SAFETY, THE ECONOMY, ECOLOGY, SCIENCE, FARMING AND RECREATION .
9 AS REGARDS THE TRANSPOSITION OF THE DIRECTIVE INTO NATIONAL LAW, IT MUST BE OBSERVED THAT THIS 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; A GENERAL LEGAL CONTEXT MAY BE SUFFICIENT IF IT ACTUALLY ENSURES THE FULL APPLICATION OF THE DIRECTIVE IN A SUFFICIENTLY CLEAR AND PRECISE MANNER ( SEE THE JUDGMENT OF 23 MAY 1985 IN CASE 29/84 COMMISSION V FEDERAL REPUBLIC OF GERMANY (( 1985 )) ECR 1667 ). HOWEVER, A FAITHFUL TRANSPOSITION BECOMES PARTICULARLY IMPORTANT IN A CASE SUCH AS THIS IN WHICH THE MANAGEMENT OF THE COMMON HERITAGE IS ENTRUSTED TO THE MEMBER STATES IN THEIR RESPECTIVE TERRITORIES .
FIRST COMPLAINT : THE LIST OF BIRDS WHICH MAY BE HUNTED
38 AS REGARDS THE THIRD ARGUMENT CONCERNING ARTICLE 9 ( 1 ) ( C ) OF THE DIRECTIVE, THAT PROVISION AUTHORIZES MEMBER STATES TO DEROGATE, INTER ALIA, FROM ARTICLES 7 AND 8 IN ORDER TO PERMIT, UNDER STRICTLY SUPERVISED CONDITIONS AND ON A SELECTIVE BASIS, THE CAPTURE, KEEPING OR OTHER JUDICIOUS USE OF CERTAIN BIRDS IN SMALL NUMBERS . IT IS CLEAR THAT THE CAPTURE AND SALE OF BIRDS, EVEN OUTSIDE THE HUNTING SEASON, WITH A VIEW TO KEEPING THEM FOR USE AS LIVE DECOYS OR FOR RECREATIONAL PURPOSES IN FAIRS AND MARKETS MAY CONSTITUTE JUDICIOUS USE AUTHORIZED BY ARTICLE 9 ( 1 ) ( C ).
39 HOWEVER, IT MUST BE OBSERVED FIRST OF ALL THAT THE PROVISION CONCERNED MAKES NO REFERENCE TO ARTICLE 9 ( 1 ), WHICH PROVIDES THAT A DEROGATION FROM ARTICLES 7 AND 8 OF THE DIRECTIVE MAY BE GRANTED ONLY IF THERE IS NO OTHER SATISFACTORY SOLUTION . SECONDLY, ARTICLE 18 OF THE LAW, WHICH AUTHORIZES THE REGIONS TO PERMIT THE USE OF MEANS AND ARRANGEMENTS FOR CAPTURING BIRDS, TO FIX THE PERIODS IN WHICH CAPTURING IS PERMITTED AND TO DRAW UP THE LIST OF BIRDS WHICH MAY BE HUNTED, DOES NOT, CONTRARY TO THE REQUIREMENTS OF ARTICLE 9 ( 2 ) OF THE DIRECTIVE, SPECIFY THE MEANS, ARRANGEMENTS OR METHODS AUTHORIZED FOR THE CAPTURE OR KILLING OF BIRDS, THE CIRCUMSTANCES OF TIME AND PLACE UNDER WHICH THE DEROGATIONS MAY BE GRANTED OR THE SPECIES COVERED BY THE DEROGATIONS . SUCH CRITERIA AND CONDITIONS ARE NECESSARY TO ENSURE THAT THE DEROGATION IS APPLIED IN A STRICTLY CONTROLLED AND SELECTIVE MANNER . SINCE ARTICLE 18 ( 2 ) OF THE LAW DOES NOT ITSELF ESTABLISH THE CRITERIA AND CONDITIONS PROVIDED FOR IN ARTICLE 9 ( 2 ) OF THE DIRECTIVE OR REQUIRE THE REGIONS TO TAKE ACCOUNT OF THOSE CRITERIA AND CONDITIONS, IT INTRODUCES AN ELEMENT OF UNCERTAINTY AS REGARDS THE OBLIGATIONS WHICH THE REGIONS MUST OBSERVE WHEN ADOPTING THEIR REGULATIONS . THEREFORE, THERE IS NO GUARANTEE THAT THE CAPTURE OF CERTAIN SPECIES OF BIRDS WILL BE LIMITED TO THE STRICT MINIMUM, THAT THE PERIOD OF CAPTURE WILL NOT COINCIDE UNNECESSARILY WITH PERIODS IN WHICH THE DIRECTIVE AIMS TO PROVIDE PARTICULAR PROTECTION OR THAT THE MEANS, ARRANGEMENTS OR METHODS FOR CAPTURE ARE NOT LARGE-SCALE, NON-SELECTIVE OR CAPABLE OF CAUSING THE LOCAL DISAPPEARANCE OF A SPECIES . IT FOLLOWS THAT THE ESSENTIAL ELEMENTS OF ARTICLE 9 OF THE DIRECTIVE HAVE NOT BEEN TRANSPOSED COMPLETELY, CLEARLY AND UNEQUIVOCALLY INTO THE ITALIAN RULES .