Commission of the European Communities v Republic of Austria.
Date: 2007-07-12
79. As to the remainder, it is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion, and that the Court cannot take account of any subsequent changes in primary or secondary legislation (see, inter alia, Case C-323/01 Commission  v Italy  [2002] ECR I-4711, paragraph 8, and Case C-23/05 Commission  v Luxembourg  [2005] ECR I-9535, paragraph 9).
87. It should be noted at the outset, first, that according to Article 1 the Directive seeks the conservation of all species of birds naturally occurring in the wild state in the European territory of the Member States and covers the protection, management and control of these species and, second, that effective bird protection is typically a transfrontier environment problem entailing common responsibilities for the Member States (see, to this effect, Case 247/85 Commission  v Belgium  [1987] ECR 3029, paragraph 6).
89. The Court has explained that the transposition of Community legislation into national law does not necessarily require the relevant provisions to be enacted in precisely the same words in a specific express legal provision and that a general legal context may be sufficient for the purpose if it actually ensures the full application of the directive in a sufficiently clear and precise manner (see, inter alia, Case 252/85 Commission  v France  [1988] ECR 2243, paragraph 5).
92. It should be added in this regard that faithful transposition is particularly important in the case of the Directive where management of the common heritage is entrusted to the Member States in their respective territories (see Case 262/85 Commission  v Italy  [1987] ECR 3073, paragraph 9, and Case C-38/99 Commission  v France  [2000] ECR I‑10941, paragraph 53).
98. The Court pointed out in Commission  v Belgium , at paragraph 22, that the protective effect of the Directive must be ensured in relation to all species of birds naturally occurring in the wild state in the European territory of a Member State.
99. Consequently, the protective measures which the Member States are called upon to take by virtue of Article 1 of the Directive must also relate to wild birds whose natural habitat occurs not in the territory of the State in question, but in that of one or more other Member States (see, to this effect, Commission  v Belgium , paragraph 22, and Case C-149/94 Vergy  [1996] ECR I‑299, paragraphs 17 and 18).
103. As is apparent from the judgment in Case 252/85 Commission  v France , at paragraph 15, the importance of complete and effective protection of wild birds throughout the Community, irrespective of the areas they stay in or pass through, causes any national legislation which delimits the protection of wild birds by reference to national fauna to be incompatible with the Directive.
137. The Republic of Austria’s argument that the authority vested with the power to adopt regulations must act in a manner consistent with the Directive cannot alter that conclusion. Suffice it to state that implementation in accordance with a directive’s provisions by that authority cannot in itself achieve the clarity and precision needed to meet the requirement of legal certainty (see, to this effect, Case C-236/95 Commission  v Greece  [1996] ECR I‑4459, paragraphs 12 and 13, and Case C-144/99 Commission  v Netherlands  [2001] ECR I‑3541, paragraph 21).
162. As regards the Republic of Austria’s argument to the effect that application of the legislation is consistent with the Directive, it need only be stated that mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting valid fulfilment of the obligations to transpose a directive (see, to this effect, Case C-197/96 Commission  v France  [1997] ECR I‑1489, paragraph 14; Case C-358/98 Commission  v Italy  [2000] ECR I‑1255, paragraph 17; and Case C-33/03 Commission  v United Kingdom  [2005] ECR I‑1865, paragraph 25).
168. In assessing the merits of the complaint set out by the Commission, it should be noted that the periods of protection to be observed pursuant to Article 7(4) of the Directive must be set taking account of the scientific data that are authoritative in the ornithological field (see, in particular, Case C-157/89 Commission  v Italy  [1991] ECR I‑57, paragraphs 15, 19 and 24).
193. Only such a view corresponds to the objective of Article 7(4) of the Directive, which, as the Court has previously stated, is to secure a complete system of protection in the periods during which the survival of wild birds is particularly under threat (see Case C-157/89 Commission  v Italy , paragraph 14, and Case C‑435/92 Association pour la protection des animaux sauvages and Others  [1994] ECR I-67, paragraph 9). This case-law reflects the consideration that any action during the periods that are connected with the reproduction of birds is liable to affect their reproduction, even if only a part of their population is concerned.
195. It must therefore be concluded that the mating season forms part of the period during which Article 7(4) of the Directive prohibits, in principle, all hunting.
196. With regard to the question whether the derogations set out in Article 9 of the Directive are capable of applying to situations governed by the specific protective requirements prescribed in Article 7(4) of the Directive, it should be noted that the Court held in Case C-182/02 Ligue pour la protection des oiseaux and Others  [2003] ECR I‑12105, at paragraph 9, that Article 9(1)(c) of the Directive permits authorisation, in compliance with the other requirements of Article 9, of the capture, keeping or other judicious use of birds during the periods mentioned in Article 7(4) of the Directive, during which the survival of wild birds is at particular risk.
198. However, the burden of proof regarding compliance with these requirements in respect of each derogation rests with the national authority taking the decision (see, to this effect, Case C-344/03 Commission  v Finland  [2005] ECR I‑11033, paragraphs 39 and 60, and Case C-60/05 WWF Italia and Others  [2006] ECR I‑5083, paragraph 34).
199. With regard to determining whether the hunting regime laid down in Paragraph 51(2) of the KrntJagdG is consistent with Article 9(1)(c) of the Directive, particularly so far as concerns the requirement that derogations be limited to ‘small numbers’, it should be remembered that the Member States, when adopting measures transposing the latter provision, must 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, and that ceiling must be determined on the basis of strict scientific data (see WWF Italia and Others , paragraph 29).
201. In order for the Directive to be transposed in accordance with Community law, the authorities competent to authorise derogations in respect of birds of a given species must be able to rely on criteria which are sufficiently precise as to the quantitative ceilings to be complied with (see, to this effect, WWF Italia and Others , paragraph 36).
204. Accordingly, Paragraph 51(2) of the KrntJagdG is also not consistent with the introductory part of Article 9(1) of the Directive, under which derogations from the provisions for the protection of birds may be granted only if there is no other satisfactory solution (see, to this effect, Case C-135/04 Commission  v Spain  [2005] ECR I-5261, paragraph 18).
205. Finally, in light of the line of argument put forward by the Republic of Austria as to the need to authorise hunting of capercaillie and black grouse so that the hunters may conserve and maintain their habitat, it is to be observed that while the protection of flora is admittedly one of the grounds of derogation set out in the fourth indent of Article 9(1)(a) of the Directive, protection of that habitat can be ensured regardless of hunting (see, to this effect, Commission  v Finland , paragraphs 35 and 40).
218. Accordingly, the hunting regime for the Rackelhahn in Lower Austria should have been mentioned in the letter of formal notice given that, according to the Court’s case-law, this letter delimits the subject-matter of the dispute (see, to this effect, Case C-441/02 Commission  v Germany  [2006] ECR I‑3449, paragraphs 59 and 60, and Case C‑150/04 Commission  v Denmark  [2007] ECR I-0000, paragraphs 66 and 67).
225. As follows from paragraphs 199 and 201 of the present judgment, the competent authorities of the Member State concerned have the task of ensuring, with sufficient legal precision and on the basis of recognised scientific data, that the quantitative ceiling is not in any event exceeded and, therefore, that the species covered are fully protected (see, to this effect, also Case C-79/03 Commission  v Spain  [2004] ECR I‑11619, paragraphs 41 and 43).
235. As the Advocate General has observed in point 93 of her Opinion, a biological species is the totality of all individual beings which form a reproducing community.
277. As has been pointed out in paragraph 92 of the present judgment, faithful transposition is particularly important in the case of the Directive where management of the common heritage is entrusted to the Member States in their respective territories (see Case 236/85 Commission  v Netherlands  [1987] ECR 3989, paragraph 5).
279. In particular, in the case of the means, arrangements or methods used for capture or killing, the Member States have the task of drawing up, with binding legal force, the list of unlawful practices (see, to this effect, Case 236/85 Commission  v Netherlands , paragraphs 27 and 28).
280. It is to be added that the prohibitions laid down by the Directive on using certain means of capture when hunting must result from legislative provisions. In view of the principle of legal certainty the relevant prohibitions must be reproduced in mandatory legal instruments (see, to this effect, Case C-339/87 Commission  v Netherlands  [1990] ECR I‑851, paragraph 22).
281. 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 regulations in order to ensure that the provisions of the Directive are adequately transposed. In addition, 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 national law (see Case C-339/87 Commission  v Netherlands , paragraph 32).
287. Any measure that derogates from the Directive’s protective provisions must be examined in light of the conditions and criteria set out in Article 9 of the Directive. Consequently, the Member States cannot entitle the authority vested with the power to make regulations to adopt measures derogating from the protective rules prescribed by the Directive without defining in a precise manner the substantive and formal requirements, arising from that article, to which such derogations must be subject (see, to this effect, WWF Italia and Others , paragraphs 25 and 28).
298. Also, so far as concerns the fundamental conditions relating to the legal form of the transposition of the Directive, the Court has stated that, in order to secure the full implementation of the Directive in law and not only in fact, Member States must establish a specific legal framework in the area in question and that the fact that activities incompatible with the prohibitions contained in the Directive are unknown in a particular Member State cannot justify the absence of legal provisions (see Case C-339/87 Commission  v Netherlands , paragraph 25).
299. It should be added that the conditions and criteria which the Member States must meet in order to derogate from the prohibitions laid down in the Directive have to be reproduced in specific national provisions (see Case C-118/94 Associazione Italiana per il WWF and Others  [1996] ECR I‑1223, paragraph 22).
339. First of all, as has been stated in paragraph 103 of the present judgment, the importance of complete and effective protection of wild birds throughout the Community, irrespective of the areas they stay in or pass through, causes any national legislation which delimits the protection of wild birds by reference to the concept of national heritage to be incompatible with the Directive.