1 By application lodged at the Court Registry on 10 February 1999, the Commission of the European Communities brought an action under Article 169 of the EC Treaty (now Article 226 EC) for a declaration that, by failing correctly to transpose Article 7 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103 p. 1, hereinafter the Wild Birds Directive or the Directive), by omitting to communicate all the transposition measures relating to the whole of its territory and by failing correctly to implement the aforesaid provision, the French Republic has failed to fulfil its obligations under that directive. Legislative background
2 Under Article 2 of the Wild Birds Directive: Member States shall take the requisite measures to maintain the population of the species referred to in Article 1 at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements, or to adapt the population of these species to that level.
3 Article 7 of the Wild Birds Directive provides: 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. Pre-litigation procedure
4 On 13 November 1997 the Commission sent the French Government a letter of formal notice regarding its failure to comply with the Wild Birds Directive, in particular Article 7 thereof.
5 In that letter the Commission stated, first, that no action had been taken by the French authorities to transpose the principle of complete protection of species embodied in the second and third sentences of Article 7(4) of the Wild Birds Directive and that, if such a measure in fact existed, it had not been communicated to the Commission.
6 Second, it observed that, in view of the failure to transpose that principle, the French rules allowed the competent minister to exercise discretion in fixing an early opening date for the hunting of waterfowl which might be incompatible with the prohibition of hunting during the periods of rearing and breeding referred to in Article 7(4) of the Wild Birds Directive. Thus, the orders of 29 May 1997 of the Minister of the Environment (JORF of 30 May 1997, p. 8303, hereinafter the ministerial orders), adopted under Article R. 224-6 of the New Rural Code, set the opening date for the hunting of waterfowl in 69 departments of Metropolitan France before the date for the opening of hunting in general, and there was no way of identifying such scientific information as may have served as a basis for the French authorities to set those dates in compliance with the principle of complete protection of species.
7 Third, the Commission stated that the closing dates expressly mentioned in Law No 94-591 of 15 July 1994 setting closing dates for the hunting of migratory birds (JORF of 16 July 1994, p. 10246) were manifestly too late for a large number of species of bird which might be hunted, according to information from the ORNIS database and, in addition, that the opportunity given to the administrative authority to derogate, within a department, from the closing dates expressly mentioned in that Law did not enable compliance with the requirements of the Wild Birds Directive to be enforced.
8 Fourth, the French authorities had never notified the Commission of the dates of the season for the hunting of migratory birds in the departments of Lower Rhine, Upper Rhine and Moselle.
9 In response to that letter of formal notice, the French Government merely sent the Commission, on 17 June 1998, a copy of the Government Report to Parliament on the application of Law No 94-591 of 15 July 1994 tabled in the French Parliament on 16 June 1998 pursuant to Article 2 of that Law.
10 By letter of 5 August 1998 the Commission issued a reasoned opinion in which it found that, by not correctly transposing Article 7 of the Wild Birds Directive, by not communicating all the transposition measures for the whole of its territory and by failing correctly to implement that provision, the French Republic had failed to fulfil its obligations under the Directive. The Commission referred to the failure to transpose the principle of complete protection both in Law No 94-591 and in Law No 98-549 of 3 July 1998 on early opening and closing dates for the hunting of migratory birds (JORF of 4 July 1998, p. 10208), which superseded the previous Law in part. It also indicated that the early opening dates for the hunting of waterfowl were excessively early both under Law No 94-591 and under Law No 98-549. The Commission also maintained that the closing dates for hunting mentioned in those two Laws were too late. It also mentioned the failure to communicate the provisions for transposition of the Wild Birds Directive for the departments of Lower Rhine, Upper Rhine and Moselle. The Commission called on the French Republic to take the measures needed to comply with the reasoned opinion within a period of two months after notification thereof.
11 By letter of 6 October 1998, the French Government stated that, in the Government Report to Parliament on the application of Law No 94-591, it had emphasised, with regard to the various draft laws on early opening and closing dates for the hunting of migratory birds, that they contained provisions which appeared to conflict with the obligations laid down by the Wild Birds Directive and that it could not accept them. It also indicated that the views expressed on the hunting issue, both within the National Assembly and at government level, were such that it ought to be possible, in due course, to ensure that the text of Law No 98-549 was revised in order better to transpose into domestic law the principles laid down in the Wild Birds Directive.
12 However, considering that the French Republic had not adopted all the measures needed to comply fully with its obligations under the Wild Birds Directive, in particular Article 7 thereof, the Commission decided to bring the present action. Substance
13 The Commission charges the French Republic with: first, failing to transpose the principle of complete protection; second, setting excessively early opening dates for hunting; third, setting excessively late dates for the closing of hunting; and fourth, failing to communicate to it all the provisions for transposition of the Wild Birds Directive for the departments of Lower Rhine, Upper Rhine and Moselle.
14 It is appropriate to consider the second charge first, then the third, then the fourth and, finally, the first. The opening dates for hunting
15 Article R. 224-6 of the New Rural Code provides: The minister responsible for hunting may, by order published at least 20 days before the date of its entry into force, authorise the hunting of waterfowl before the opening date for hunting in general: 1. in maritime hunting areas; 2. on rivers, streams, canals, reservoirs, lakes, ponds and undrained marshes, only shooting above the surface of the water being allowed.
16 For 69 departments of Metropolitan France, the ministerial orders set the opening dates for the hunting of waterfowl within the period from 19 July to 31 August 1997, before the general opening date for hunting.
17 The second paragraph of Article L. 224-2 of the New Rural Code, as amended by Law No 98-549, which applied until the adoption of Law No 2000-698 of 26 July 2000 on hunting (JORF of 27 July 2000, p. 11542) determined directly, for 68 of the 69 departments of the Metropolitan territory previously covered by the abovementioned ministerial orders, the early opening dates for the hunting of waterfowl within the public maritime domain and other areas. The department of Moselle, which is covered by one of the ministerial orders, was expressly excluded from the scope of that provision.
18 The Commission contends that the early opening dates for the hunting of waterfowl set by the ministerial orders had no scientific basis and, in certain cases, were incompatible with the prohibition of hunting of waterfowl in the rearing period and during the various stages of reproduction and dependency of the species of birds concerned laid down in Article 7(4) of the Wild Birds Directive. It also argues that the early opening dates for the hunting of the species of waterfowl identified in the second paragraph of Article L. 224-2 of the New Rural Code, as amended by Law No 98-549, are essentially the same as those provided for in the rules in force before that Law was enacted. Accordingly, they too are excessively early.
19 The French Government replies that the early opening dates for the hunting of waterfowl set by the ministerial orders were based on scientific information. They were determined using a method based on annual observations made and acted upon in accordance with a protocol drawn up by the National Museum of Natural History and the National Hunting Authority (Office National de la Chasse) which was presented in a 1989 report entitled Pattern and timing of pre-mating migration and reproduction of waterfowl in France. That method makes it possible to protect species that are rearing their young and only a minority of individual birds are liable not to benefit from such protection. The killing of a significant number of birds is thus obviated. The French Government asserts that the early opening dates for the hunting of the species of waterfowl mentioned in the second paragraph of Article L. 224-2 of the New Rural Code, as amended by Law No 98-549, were determined by reference to the results obtained from the application of that method over a period of five years. The French Government recognises, however, in the light of the latest scientific knowledge summarised in the report of the Scientific Committee of the National Museum of Natural History of 30 September 1999 that, as a result of that method, the opening of hunting for certain of the relevant species, in certain areas, is too early.
20 In that connection it should be borne in mind that, according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that State at the end of the period laid down in the reasoned opinion (see, in particular, Case C-166/97 Commission v France [1999] ECR I-1719, paragraph 18).
21 By the end of that period, the procedure for determining early dates for the opening of the hunting of waterfowl, provided for in the ministerial orders adopted under Article R. 224-6 of the New Rural Code, had been replaced by the procedure introduced by Article L. 224-2 of the same code, as amended by Law No 98-549. Nevertheless, as far as the choice of early opening dates for the hunting of waterfowl was concerned, the latter system differed only minimally from the former system.
22 It is therefore necessary to examine this charge in relation to the system of early opening dates for the hunting of waterfowl, as established by Law No 98-549 amending Article L. 224-2 of the New Rural Code.
23 In that connection, it must be made clear that Article 7(4) of the Wild Birds Directive seeks in particular to impose a prohibition of hunting of all species of wild birds during the rearing periods and the various stages of reproduction and dependency and, in the case of migratory species, during their return to their rearing grounds. Moreover, the Court has held that that article is designed 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 [1991] ECR I-57, paragraph 14, and Case C-435/92 APAS v Préfets de Maine-et-Loire and Loire-Atlantique [1994] ECR I-67, paragraph 9). Accordingly, protection against hunting activities cannot be confined to the majority of the birds of a given species, as determined by average reproductive cycles and migratory movements (see the cases cited above, Commission v Italy, paragraph 14, and APAS v Préfets de Maine-et-Loire and Loire-Atlantique, paragraph 10).
24 In this case, the French Government itself recognises that the early opening dates for the hunting of waterfowl indicated in the second paragraph of article L. 224-2 of the New Rural Code, as amended by Law No 98-549, do not enable all individuals of species which are rearing their young to be protected. That is tantamount to admitting that, for certain of the species concerned and in certain areas, hunting is opened too early.
25 Furthermore, it is clear from a study by the National Hunting Authority of February 1998 regarding two species of birds which may be hunted that the early opening dates for hunting given in the ministerial orders fairly frequently impinge upon the periods in which a significant number of young birds are dependent in so far as they are not yet able to fly. Thus, in the case of mallards, in eight departments no more than 80% of young birds were able to fly by the early opening date for hunting; on the same date, in 26 other departments, a maximum of 90% of young birds were able to fly. In the case of the coot, in eight departments, no more than 80% of young birds were able to fly by the early opening date of hunting; in 15 other departments, no more than 90% of young birds were able to fly by that date.
26 Given that, as stated in paragraph 21 of this judgment, the system of early opening dates for the hunting of waterfowl provided for in Law No 98-549 displays, as regards the choice of dates, only minimal differences from the system established by the ministerial orders, the information given in the survey referred to in the foregoing paragraph of this judgment remains, for the most part, relevant for assessing the compatibility of the new system with the requirements of the Wild Birds Directive.
27 It follows that the system of earlier opening dates for the hunting of waterfowl, as established by Law No 98-549 amending Article L. 224-2 of the New Rural Code, is not capable of fulfilling the requirement laid down in Article 7(4) of the Wild Birds Directive, as interpreted by the Court, that there be a complete system of protection for wild birds over the period in which their survival is particularly threatened.
28 Accordingly, it must be held that, as far as the choice of early opening dates for the hunting of certain species of waterfowl is concerned, the French Republic has not correctly implemented Article 7(4) of the Wild Birds Directive within the prescribed period. Consequently, the Commission's application must be upheld on this point. Closing dates for hunting
29 Article L. 224-2 of the New Rural Code, as amended by Law No 94-591, provided: No person may hunt outside the open hunting periods determined by the administrative authority. However, for waterfowl and birds of passage, the closing dates for hunting shall be as follows, throughout the Metropolitan territory, with the exception of the departments of Lower Rhine, Upper Rhine and Moselle. mallard: 31 January; common pochard, lapwing: 10 February; greylag goose, gadwall, teal, garganey, coot, goldeneye, oyster-catcher, golden plover, redshank, ruff, black-tailed godwit, skylark, mistle thrush: 20 February; other species of waterfowl and birds of passage: the last day of February. The administrative authority may, by order adopted after an opinion has been obtained from the Departmental Council for Hunting and Wild Animals, bring forward the closing dates mentioned in the foregoing paragraphs, subject to the proviso that such dates must fall before 31 January.
30 The third paragraph of article L. 224-2 of the New Rural Code, as amended by Law No 98-549, which remained in force until the adoption of Law No 2000-698, provided: For waterfowl and birds of passage, throughout the Metropolitan territory, with the exception of the departments of Lower Rhine, Upper Rhine and Moselle, the closing dates shall be as follows: mallard: 31 January; common pochard, tufted duck, lapwing: 10 February; greylag goose, gadwall, teal, garganey, coot, goldeneye, red-crested pochard, golden plover, redshank, ruff, black-tailed godwit, skylark: 20 February; other species of waterfowl and birds of passage: the last day of February.
31 The Commission contends that the closing dates for hunting, in the case of the species of waterfowl and birds of passage expressly mentioned in Law No 94-591, allowed an overlap between the hunting period and the return migration periods scientifically identified for 31 species. For 12 of them, the overlap exceeded 20 days. Law No 98-549 made no major changes in that respect. The overlap affects 29 species and is of 20 or more days for the 12 species referred to above.
32 In practice, such rules do not, in its view, ensure complete protection for species of birds during pre-mating migration, contrary to the requirements of Article 7(4) of the Wild Birds Directive, as interpreted by the Court.
33 The Commission also observes that, since the closing dates for hunting are staggered, and species displaying similarities may be hunted or not hunted depending on the closing date adopted for each of them, there is a risk of confusion. Those dates should therefore be fixed in such a way as to ensure complete protection for species, which means that the risk of confusing species must be taken into account. However, according to the information now available, that is not the case in France at present.
34 The Commission also contends that the ORNIS method referred to by the French Government is based on express acceptance of an overlap, described as insignificant, between hunting periods and migration periods for certain birds, except as regards late migrating species and those in a poor state of conservation, the hunting of which must cease within the 10 days preceding the 10-day period during which their migratory flights commence. However, Article 7(4) of the Wild Birds Directive cannot be properly complied with on the basis of that method, as the Court held in its judgment in APAS v Préfets de Maine-et-Loire and Loire-Atlantique, cited above. The Directive, as interpreted by the Court, requires total cessation of hunting as soon as migration begins, save in exceptional cases (isolated specimens commencing migration). Thus, all overlapping must be prohibited and no other criterion, such as the state of conservation of species, can be relied on as a reason to allow the hunting of birds which have started migrating.
35 The French Government recognises that some of the dates laid down by Laws No 94-591 and No 98-549 may be open to criticism under Article 7(4) of the Wild Birds Directive, as interpreted by the Court. However, it states that Law No 94-591 provided for 10-day staggering of closing dates for hunting in reliance on the ORNIS method, as described in the Memorandum on Certain Biological Concepts Employed in the Wild Birds Directive, which was adopted on 28 April 1993 by the Committee for the Adaptation to Technical and Scientific Progress, also known as the ORNIS Committee, set up under Article 16 of the Wild Birds Directive. That memorandum was published by the Commission on 24 November 1993 in the Second report on the application of the Wild Birds Directive. The closing dates for hunting adopted by Law No 98-549 are also arrived at, in essence, by applying that method.
36 According to the French Government, the ORNIS method allows the capture, during the overlap between the hunting season and the start of migration, of a number of birds not constituting a significant kill, provided that the state of conservation of the species so allows, with the result that complete protection of the species and not of each individual bird is ensured. The few cases in which application of that method by the French authorities does not yield a result conforming with the requirements of the Wild Birds Directive are attributable to inadequate application of that method and not to any shortcomings inherent in it.
37 As regards the argument that the practice of staggering closing dates for hunting is liable to undermine the objective of complete protection of species, by reason of the risk of confusion between some of them, the French Government contends that it is not sufficient, in Treaty-infringement proceedings, for the Commission to refer to the existence of a risk: the Commission must also demonstrate specific materialisation of that risk by establishing that the allegedly unlawful practice is in reality inimical to the desired protection. In view of the fact that the staggering of closing dates for hunting is not a new practice, the Commission should be in a position to demonstrate that such practices have had an impact on the population levels of the species concerned.
38 In that regard, it must be made clear at the outset that, in view of what is stated in paragraph 20 of this judgment, it is appropriate to examine this charge only in relation to the system of closing dates for the hunting of waterfowl and birds of passage introduced by the third paragraph of Article L. 224-2 of the New Rural Code, as amended by Law No 98-549. By the end of the period laid down in the reasoned opinion, that system had superseded the one introduced by the second paragraph of Article L. 224-2 of the New Rural Code, as amended by Law No 94-591.
39 It should also be noted that the French Government itself admits that the system at issue does not, in certain cases, satisfy the requirements of the Wild Birds Directive.
40 Finally, it is clear from an examination of a table drawn up in accordance with information from the ORNIS database, produced to the Court, that, for 29 migratory species which may be hunted in France, the closing dates for hunting are fixed, depending on the species concerned, 10, 20 or even 30 days later than the date of commencement of return migration (also known as pre-mating migration) of the species. The species concerned are mallard, lapwing, greylag goose, teal, coot, pintail, shoveler, wigeon, white-fronted goose, bean goose, scaup, stock dove, woodpigeon, moorhen, jack snipe, velvet scoter, curlew, grey plover, common eider, spotted redshank, redwing, blackbird, song thrush, fieldfare, black-tailed godwit, skylark, mistle thrush and snipe.
41 It follows that a greater or lesser percentage of birds, depending on the species involved, is not protected against hunting in the pre-mating migration periods, during which the survival of birds is under particular threat.
42 As the Court has held, a method whose object or effect is to allow a certain percentage of the birds of a species to escape complete protection during the period of pre-mating migration does not comply with Article 7(4) of the Wild Birds Directive (see APAS v Préfets de Maine-et-Loire and Loire-Atlantique, paragraph 13).
43 As regards the staggering of closing dates for hunting, it must be borne in mind that the national authorities are not empowered by the Wild Birds Directive to lay down dates which vary according to species of bird unless the Member State concerned can adduce evidence, based on scientific and technical data relevant to each individual case, that staggering the closing dates for hunting does not impede the complete protection of species of bird liable to be affected by such staggering (see APAS v Préfets de Maine-et-Loire and Loire-Atlantique cited above, paragraph 22).
44 The French Government has produced no such evidence.
45 It must therefore be held that, with regard to the choice of closing dates for the hunting of certain species of waterfowl and of migratory birds, the French Republic has not correctly implemented Article 7(4) of the Wild Birds Directive within the prescribed period. Consequently, the Commission's application must be upheld on this point is well. Communication of the provisions for transposition of the Wild Birds Directive in relation to the departments of Lower Rhine, Upper Rhine and Moselle
46 The Commission maintains that the French authorities have not communicated to it the dates of the hunting season for migratory birds in the departments of Lower Rhine, Upper Rhine and Moselle.
47 The French Government recognises that it had not forwarded any information of that kind by the end of the period prescribed in the reasoned opinion.
48 Accordingly, it must be held that, by failing to notify within the prescribed periods the dates of the hunting season for migratory birds in the departments of Lower Rhine, Upper Rhine and Moselle, the French Republic has failed to fulfil its obligations under Article 7(4) of the Wild Birds Directive. The Commission's application is therefore well founded on this point as well. Transposition of the provisions of the second and third sentences of Article 7(4) of the Wild Birds Directive
49 The Commission contends that transposition into French law of the principle of complete protection during hunting periods, as embodied in the second and third sentences of Article 7(4) of the Wild Birds Directive, which has not taken place, is necessary to ensure that the authorities responsible for determining dates for hunting are in a position to do so in accordance with the clear provisions of the Directive and that every interested party should benefit from the full effect of those provisions.
50 With regard more particularly to the rules in force at the end of the period prescribed in the reasoned opinion, the Commission contends that, although the early opening and closing dates for hunting are now fixed by the legislature, the latter has always allowed the administrative authorities a degree of latitude as regards determining such dates and laying down rules governing hunting within the legally defined periods. Thus, the opening and closing dates for hunting laid down by the legislature in the second and third paragraphs of Article L. 224-2 of the New Rural Code, as amended by Law No 98-549, do not apply to the departments of Lower Rhine, Upper Rhine and Moselle. It is incumbent upon the prefects of those departments to lay down the opening and closing dates for hunting in accordance with Article R. 229-2 of that code, which defines, for those three departments, the open season for hunting in general. As regards measures governing hunting arrangements, the Commission points out that, pursuant to the last three paragraphs of Article L. 224-2 of the same code, as amended by Law No 98-549, the administrative authorities are, where necessary, to draw up management plans. However, the latter are very closely linked to, in particular, the determination of dates for closing of the hunting season.
51 According to the French Government, the charge of failure to transpose the principle of complete protection into French law is purely formal since the travaux préparatoires for both Law No 94-591 and Law No 98-549 prove that the legislature wished to comply with Article 7(4) of the Wild Birds Directive, as interpreted by the Court, notwithstanding the fact that some of the dates adopted seem hardly compatible with that provision. In reality, the transposition of such a principle into national law is superfluous since the law in force ensures that it is actually applied. The French Government contends that, in any event, the Wild Birds Directive is a well-known measure as well known as a provision incorporating a new principle in the Rural Code would be and that citizens know that they are able to rely on it, as is demonstrated by the increasing number of administrative actions based on that measure. Moreover, the French courts have never declined to examine the compatibility of administrative measures with the Wild Birds Directive or, in particular, with the principle of complete protection.
52 In response to that submission, it must be observed, first, that it is common ground that the provisions of the second and third sentences of Article 7(4) of the Wild Birds Directive had not been formally incorporated in French law by the end of the period prescribed by the reasoned opinion.
53 Second, the Court has indeed held that the transposition of a directive into domestic law 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 and that a general legal context may be sufficient if it actually ensures the full application of the directive in a sufficiently clear and precise manner. However, the Court has also held that faithful transposition becomes particularly important in the case of the Wild Birds Directive where management of the common heritage is entrusted to the Member States in their respective territories (see, in particular, Case 262/85 Commission v Italy [1987] ECR 3073, paragraph 9).
54 Third, with regard to the departments of Lower Rhine, Upper Rhine and Moselle, Article R. 229-2 of the Rural Code provides: The open season for hunting in general must be within the following dates: general opening date, no earlier than 23 August; general closing date, no later than 1 February. Under the same code, it is the responsibility of the prefect to make an annual order for opening of the hunting season.
55 In so far as domestic law contains no provision requiring the prefects of those departments to take account, in adopting the annual order for opening of the hunting season, of the prohibition of hunting any species of bird during the sensitive periods mentioned in paragraph 23 of this judgment, that law is subject to a degree of legal uncertainty as regards the obligations to be complied with by prefects in adopting measures. As a result, there is no guarantee that the hunting of wild birds will be proscribed during the rearing period or the various stages of reproduction and dependence or, in the case of migratory species, during their return to their rearing grounds (see, to that effect, Case 262/85 Commission v Italy, cited above, paragraph 39).
56 It follows that essential provisions of the Wild Birds Directive, such as those of the second and third sentences of Article 7(4), have not in any event been completely, clearly and unambiguously transposed into the French rules (see, to that effect, Case 262/85 Commission v Italy, cited above, paragraph 39).
57 It must therefore be held that, as regards the department of Lower Rhine, Upper Rhine and Moselle, the French Republic has not correctly transposed the second and third sentences of Article 7(4) of the Wild Birds Directive within the prescribed period. Consequently, the application must be upheld on this point as well.