1. By decision of 25 January 2002, received at the Court on 15 May 2002, the Conseil d'État (Council of State) referred to the Court for a preliminary ruling under Article 234 EC two questions on the interpretation of Article 9(1)(c) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1, hereinafter "the Directive" ).
2. Those questions were raised in actions brought before the Conseil d'État by the Ligue pour la protection des oiseaux (League for the Protection of Birds), the Association pour la protection des animaux sauvages (Association for the Protection of Wild Animals) and the Rassemblement des opposants à la chasse (Anti-Hunting Union) respectively seeking the annulment, for misuse of powers, of Decree No 2000-754 of 1 August 2000 relating to the dates for the hunting of migratory birds and waterfowl and amending the Rural Code (JORF of 5 August 2000, p. 12178, hereinafter "the contested decree" ). Legal framework Community legislation
3. Article 7 of the Directive is worded as follows: "1. Owing to their population level, geographical distribution and reproductive rate throughout the Community, the species listed in Annex II may be hunted under national legislation. Member States shall ensure that the hunting of these species does not jeopardise conservation efforts in their distribution area. 2. The species referred to in Annex II/1 may be hunted in the geographical sea and land area where this directive applies. 3. The species referred to in Annex II/2 may be hunted only in the Member States in respect of which they are indicated.
4. Member States shall ensure that the practice of hunting, including falconry if practised, as carried on in accordance with the national measures in force, complies with the principles of wise use and ecologically balanced control of the species of birds concerned and that this practice is compatible as regards the population of these species, in particular migratory species, with the measures resulting from Article 2. They shall see in particular that the species to which hunting laws apply are not hunted during the rearing season nor during the various stages of reproduction. In the case of migratory species, they shall see in particular that the species to which hunting regulations apply are not hunted during their period of reproduction or during their return to their rearing grounds. Member States shall send the Commission all relevant information on the practical application of their hunting regulations. " 4. Article 9(1) and (2) of the Directive provides: "1. Member States may derogate from the provisions of Articles 5, 6, 7 and 8, where there is no other satisfactory solution, for the following reasons: (a) ─ in the interests of public health and safety, ─ in the interests of air safety, ─ to prevent serious damage to crops, livestock, forests, fisheries and water, ─ for the protection of flora and fauna; (b) for the purposes of research and teaching, of re-population, of re-introduction and for the breeding necessary for these purposes; (c) to permit, under strictly supervised conditions and on a selective basis, the capture, keeping or other judicious use of certain birds in small numbers. 2. The derogations must specify: ─ the species which are subject to the derogations, ─ the means, arrangements or methods authorised for capture or killing, ─ the conditions of risk and the circumstances of time and place under which such derogations may be granted, ─ the authority empowered to declare that the required conditions obtain and to decide what means, arrangements or methods may be used, within what limits and by whom, ─ the controls which will be carried out. " National legislation
5. Article 2 of the contested decree provides that derogations from prohibitions on hunting outside the hunting periods set by the administrative authorities and during certain vulnerable periods for birds may be granted by prefects (departmental heads of administration) to permit the capture, keeping or other judicious use of geese, wood pigeons and thrush in small numbers, until 20 February. An order of the Minister responsible for hunting, adopted following consultation with the Conseil national de la chasse et de la faune sauvage (National Council for Hunting and Wildlife), lays down the conditions in which such uses may be authorised and the procedures for the controls to be implemented. The Minister also determines, after consultation with the Fédération nationale de la chasse (National Hunting Federation) and the Office national de la chasse et de la faune sauvage (National Authority for Hunting and Wildlife), the maximum number of birds, by species, which may be taken in each department. Prefects establish the maximum number of birds which may be taken by beneficiaries of the derogation. The main proceedings and the questions referred for a preliminary ruling
6. In the actions brought before the Conseil d'État to annul the contested decree for misuse of powers, that court in essence stated that Article 2 of that decree is intended to implement Article 9(1) of the Directive. According to the Conseil d'État, the assessment of the legality of Article 2 depends, first, on whether Article 9(1)(c) of the Directive permits derogations from the opening and closing dates for hunting set in the light of the objectives specified in Article 7(4) of the Directive and, second, if so, what the criteria and limits are when laying down those derogations.
7. The Conseil d'État, after annulling Article 1 of the contested decree in part in so far as it related to the opening or closing dates for hunting certain species, decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling: "1. Does Article 9(1)(c) of Council Directive 79/409 of 2 April 1979 permit a Member State to derogate from the opening and closing dates for hunting which follow from consideration of the objectives specified in Article 7(4) thereof? 2. If so, what are the criteria which make it possible to establish the limits of that derogation? " The first question
8. Article 9(1)(c) of the Directive provides that Member States may derogate from, inter alia, Article 7 where there is no other satisfactory solution, 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.
9. It therefore appears that Article 9(1)(c) of the Directive permits authorisation, in compliance with the conditions set out in that provision, of the capture, keeping or other judicious use of certain birds during the periods mentioned in Article 7(4) of the Directive, during which the survival of wild birds is at particular risk.
10. According to the case-law of the Court, Article 9 of the Directive authorises Member States to derogate from provisions relating, inter alia, to hunting (Case 247/85 Commission v Belgium [1987] ECR 3029, paragraph 7). The Court has also accepted the possibility of derogating from the prohibition on hunting species of birds not listed in Annex II to the Directive, to which Article 7(1) refers, in particular for the reason set out in Article 9(1)(c) of the Directive (Case C-118/94 Associazione Italiana per il WWF and Others [1996] ECR I-1223, paragraph 21).
11. It is clear from the foregoing that the hunting of wild birds for recreational purposes during the periods mentioned in Article 7(4) of the Directive may constitute a judicious use authorised by Article 9(1)(c) of that directive, as do the capture and sale of wild birds even outside the hunting season with a view to keeping them for use as live decoys or to using them for recreational purposes in fairs and markets (see Case 262/85 Commission v Italy [1987] ECR 3073, paragraph 38).
12. The answer to the first question must therefore be that Article 9(1)(c) of the Directive permits a Member State to derogate from the opening and closing dates for hunting which follow from consideration of the objectives set out in Article 7(4) of the Directive. The second question
13. First, Article 9 of the Directive authorises Member States to derogate from the general prohibition on hunting protected species which is laid down in Articles 5 and 7 of the Directive only by measures which refer in sufficient detail to the factors mentioned in Article 9(1) and (2) (see Associazione Italiana per il WWF and Others , cited above, paragraph 26).
14. A national measure which permits derogating from Article 7(4) of the Directive by virtue of Article 9(1), such as the measure cited in paragraph 5 of this judgment, does not comply with the latter provision if it fails to refer to the fact that such a derogation can be granted only where there is no other satisfactory solution (see, to that effect, Commission v Italy , cited above, paragraph 39).
15. Second, as regards hunting in particular, that activity can be permitted pursuant to Article 9(1)(c) of the Directive only if: ─ there is no other satisfactory solution; ─ it is carried out under strictly supervised conditions and on a selective basis; ─ it applies only to certain birds in small numbers.
16. The first of the conditions set out in the preceding paragraph cannot be considered to have been satisfied when the hunting period under a derogation coincides, without need, with periods in which the Directive aims to provide particular protection (see, to that effect, Commission v Italy , paragraph 39). There would be no such need if the sole purpose of the derogation authorising hunting were to extend the hunting periods for certain species of birds in territories which they already frequent during the hunting periods fixed in accordance with Article 7 of the Directive.
17. The third of those conditions cannot be satisfied if a hunting derogation does not ensure the maintenance of the population of the species concerned at a satisfactory level. If that condition is not fulfilled, the use of birds for recreational hunting cannot, in any event, be considered judicious and, accordingly, acceptable for the purposes of the 11th recital in the preamble to the Directive.
18. Finally, the measures under which hunting is authorised pursuant to Article 9(1)(c) of the Directive must, in accordance with Article 9(2), specify: ─ the species which are subject to the derogations; ─ the means, arrangements or methods authorised for capture or killing; ─ the conditions of risk and the circumstances of time and place under which such derogations may be granted; ─ the authority empowered to declare that the required conditions obtain and to decide what means, arrangements or methods may be used, within what limits and by whom; ─ the controls which will be carried out.
19. In the light of the foregoing, the answer to the second question must be that Article 9 of the Directive must be interpreted as allowing hunting to be authorised pursuant to Article 9(1)(c) where: ─ there is no other satisfactory solution. That condition would not be met, inter alia, if the sole purpose of the derogation authorising hunting were to extend the hunting periods for certain species of birds in territories which they already frequent during the hunting periods fixed in accordance with Article 7 of the Directive; ─ it is carried out under strictly supervised conditions and on a selective basis; ─ it applies only to certain birds in small numbers; ─ mention is made of: (a) the species which are subject to the derogations; (b) the means, arrangements or methods authorised for capture or killing; (c) the conditions of risk and the circumstances of time and place under which such derogations may be granted; (d) the authority empowered to declare that the required conditions obtain and to decide what means, arrangements or methods may be used, within what limits and by whom; (e) the controls which will be carried out.