C-252/85, Commission v. France
| Author | European Commission |
| Pages | 51-52 |
Page 51
Judgment of the Court of 27 April 1988. Commission of the European Communities v French Republic. Failure to comply with a directive - Conservation of wild birds. http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&numdoc=61985J0252
The Commission considers that the French legislation is not in conformity with the abovementioned provisions in two respects. First the Commission alleges that, in the 10th paragraph of Article 372 and Article 374(4) of the Rural Code, the French Government has only provided for the protection of nests and eggs during the close season. Secondly, it complaints that the nests and eggs of a certain number of birds are not protected since the provisions of Articles 1, 2 and 3 of the Ministerial Decree of 17th April 1981 taken in conjunction, exclude certain species from the scope of that decree.
The French Government considers that the objective set out in Article 5 is achieved by the abovementioned provisions of the Rural Code. The protected species of birds in question do not nest during the hunting season and there would therefore be no real purpose in protecting their nests and eggs throughout the year. The possibility of destroying nests under Article 2 of the abovementioned decree is justified by the threat which the birds represent to mussel farming, other species of sea birds and air safety. The French Government states that the Article 3 of that decree was replaced by a decree of 20th December 1983.
As regards the first aspect of this complaint, it must be stressed that the prohibitions set out in Article 5(b) and (c) must apply without any limitation in time. An uninterrupted protection of the birds' habitat is necessary since many species re-use each year nests built in earlier years. To suspend that protection throughout a particular period of the year cannot be considered to be compatible with the abovementioned prohibition.
As regards to the second aspect of the Commissions' first complaint, it must be stated that even after Article 3 of the decree of 17th April 1981 was repealed in 1983, the decree nonetheless excludes a certain number of protected birds from the scope of the prohibition on destruction of nests and eggs. In determining whether this derogation is compatible with Article 9 it should be noted that, as the Court held with regard to the Belgian rules in this field in its Judgement of 8 July 1987 in Case 247/85 Commission v Belgium, the French rules in question do not specify the reasons set out in Article 9(1) or the criteria and conditions referred to in Article 9(2), particularly as regards the circumstances of time and place in which a derogation may be granted. Consequently, the French legislation is not in conformity with Article 5(b) and (c).
The Commission stresses that the protection provided by French legislation is limited to the preservation of the national biological heritage whereas Article 1 extends the protection of the Directive to all species of naturally occurring birds in the wild state in the European territory of the Member States.
The French Government contends that the list of species protected by virtue of the national rules contains numerous migratory species which nest in the other Member States but not in France.
In this respect it should be recalled, as the Court has already stated, that, as indicated by the third recital of the preamble to the Directive, the protection of migratory species is typically a transfrontier environment problem entailing common responsibilities for the Member States. 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. The second complaint must therefore be upheld.
Page 52
The Commission points out that French Law No 76/629 contains a general authorization concerning the keeping of protected birds. However, under Article 5(e) Member States are obliged to prohibit the keeping of species of birds the hunting and capture of which is prohibited. Such a general prohibition on keeping of birds other than species referred to in Annex III to the Directive, pursuant to Article 6(2) and (3), is not to be found in the French legislation which limits such protection to a restricted number of birds.
While stating that the list of species protected by virtue of the Decree of 17th April 1981 is to be extended, the French Government considers that the French rules allow the result sought by the Directive to be achieved. The abovementioned decree prohibits the capture, removal, use and in particular the offering for sale or the purchase of those birds, taken in conjunction, those prohibitions make the keeping of those protected species impossible.
In this respect, it should be noted that in order to guarantee complete and effective protection of birds on the territory of all Member States it is vital that the prohibitions set out in the Directive be expressly embodied in national law. However, the French rules contain no prohibition relating to keeping of protected birds, and thus allow the keeping of birds captured or obtained illegally, in particular those captured or obtained outside French territory. The complaint must be upheld.
The Commission points out that, as regards certain French departments, the decree of 27 July 1982 authorises the use of limes for the capture of thrushes and that decrees of 7 September 1982 and 15 October 1982 allow the capture of skylarks by means of horizontal nets known as "pantes" or "matoles". However, the use of limes and horizontal nets is expressly forbidden by Article 8(1) in conjunction with Annex IV(a) thereto. The Commission takes the view that the use of limes and horizontal nets cannot be justified on the basis of Article 9(1)(c) since those means of capture do not constitute selective methods and do not therefore allow "judicious use of certain birds in small numbers" within the meaning of the Directive.
The French Government considers that those measures, which were notified to the Commission, are justified under Article 9(1)(c) because such capture is subject to strict territorial, temporal and personal controls in order to guarantee the selective nature of the capture. The French Government contends that the capture of birds with limes and horizontal nets is subject to an extremely strict and controlled system of individual authorisations. The decrees in question do not merely specify the places where and the period when such capture is permitted but also limit the number and the surface area of the means of capture as well as the maximum number of birds which may be captured. Furthermore, the competent authorities ensure that those conditions applying to such capture are complied with.
It must be observed at the outset that under Article 9, in particular on the basis of Article 9(1)(c), Member States are authorized to provide for derogations from prohibitions set out in Article 8(1). In order to establish whether national legislation complies with various criteria of Article 9(1)(c) it is necessary to examine whether the legislation guarantees that the derogation is applied on a strictly controlled and selective basis so that the birds in question are captured in only small numbers and in judicious manner. In this respect, it is apparent from Article 2, in conjunction with the 11th recital of the preamble to the Directive, that the criterion of small quantities is not an absolute criterion but rather refers to the maintenance of the level of total population and to the reproductive situation of the species concerned. The French rules concerning the capture of thrushes and skylarks in certain departments are very precise. The abovementioned decrees make the grant of authorisations to capture such birds subject to a considerable number of restrictive conditions. The Commission has not shown that the French rules permit the capture of birds in a manner incompatible with a judicious use of certain birds in small numbers. The Commission has not contested the defendant's argument that the number of birds captured constitutes a very small percentage of the population concerned. The defendant notified the Commission of those derogations in accordance with Article 9(4) and showed its willingness to reach agreement with the Commission regarding the detailed rules concerning those two hunting methods. However, the Commission did not respond to that initiative. In the light of foregoing, the French provisions in question cannot, on the basis of the documents before the Court, be considered to be incompatible with the requirements of Article 9(1)(c) and therefore the complaint must be dismissed.
