C-38/99, Commission v. France

AuthorEuropean Commission
Pages79-83

Page 79

Judgment of the Court (Sixth Chamber) of 7 December 2000. - Commission of the European Communities v French Republic. - Failure by a Member State to fulfil its obligations - Conservation of wild birds - Hunting periods. http://europa.eu.int/eur-lex/lex/LexUriServ/LexUriServ.do?uri=CELEX:61999J0038:EN:HTML

The opening dates for hunting

The New Rural Code provides that 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 inPage 80 general in maritime hunting areas and on rivers, streams, canals, reservoirs, lakes, ponds and undrained marshes, only shooting above the surface of the water being allowed. 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. The New Rural Code 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.

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 Birds Directive. It also argues that the early opening dates for the hunting of the species of waterfowl identified in the New Rural Code are essentially the same as those provided for in the rules in force before that Law was enacted. Accordingly, they too are excessively early.

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 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 New Rural Code 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.

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. 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 the New Rural Code, had been replaced by the procedure introduced by another Article the same code. 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. It is therefore necessary to examine this charge in relation to the system of early opening dates for the hunting of waterfowl. In that connection, it must be made clear that Article 7(4) 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. 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.

In this case, the French Government itself recognises that the early opening dates for the hunting of waterfowl indicated in the New Rural Code 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. 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. Given that the system of early opening dates for the hunting of waterfowl 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 Directive. It follows that the system of earlier opening dates for the hunting of waterfowl 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.

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Closing dates for hunting

Article L. 224-2 of the New Rural Code, as amended by Law No 94-591, provided that 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.

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 that 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.

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. 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), as interpreted by the Court. 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. 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) cannot be properly complied with on the basis of that method, as the Court held in its judgment in APAS v Prfets 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.

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), 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 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. That memorandum was published by the Commission on 24 November 1993 in the Second report on the application of the Directive. The closing dates for hunting adopted by Law No 98-549 are also arrived at, in essence, by applying that method. 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 to the requirements of the Wild Birds Directive are attributable to inadequate application of that method and not to any shortcomings inherent in it. 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 bePage 82 in a position to demonstrate that such practices have had an impact on the population levels of the species concerned.

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. Therefore 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. 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 Directive. 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, pigeon, 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. 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. 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). As regards the staggering of closing dates for hunting, it must be borne in mind that the national authorities are not empowered by the 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. The French Government has produced no such evidence. 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) within the prescribed period.

Communication of the provisions for transposition of the Directive

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. 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. 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).

Transposition of the second and third sentences of Article 7(4)

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), 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. 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.

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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 prparatoires for both Law No 94-591 and Law No 98-549 prove that the legislature wished to comply with Article 7(4) , 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 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.

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) had not been formally incorporated in French law by the end of the period prescribed by the reasoned opinion. 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 this Directive where management of the common heritage is entrusted to the Member States in their respective territories. Third, with regard to the departments of Lower Rhine, Upper Rhine and Moselle, Article R. 229-2 of the Rural Code provides that 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. 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 above (rearing periods, various stages of reproduction and dependency, during return of migratory species to their rearing grounds and other periods during which the survival of wild birds is particularly under threat) 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. It follows that essential provisions of the 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. 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) within the prescribed period.

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