C-412/85, Commission v. Germany

• Author: European Commission
• Pages: 56-57

Page 56

Judgment of the Court of 17 September 1987. Commission of the European Communities v Federal Republic of Germany. 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=61985J0412

The Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by authorising derogation from the measures for the protection of birds without providing for the restrictions prescribed by the Birds Directive, the Federal Republic of Germany has failed to fulfil its obligations under the EEC Treaty. Originally, the Commission's action concerned three provisions of the German Federal Law on the protection of nature (hereinafter the "Federal law") authorising derogation from the legislation concerning the protection of birds. Following an amendment made to the Federal law after the written procedure had ended, the Commission considered the case settled in regard to the second and third complaints and only one point remained in disagreement, namely the conformity of the first sentence of paragraph 22(3) of the Federal law with Article 5 of the Birds Directive read in conjunction with Article 9 thereof.

Article 5 of the Birds Directive provides for general prohibitions on the deliberate killing or capture of the species of birds referred to in Article 1 of the Birds Directive and on the deliberate destruction of, or damage to their nests and eggs and the deliberate disturbance of those birds insofar as their disturbance would be significant having regard to the objectives of the Birds Directive.

Those general prohibitions laid down in the Directive were transposed into German law by paragraph 22(2) of the Federal law. That provision prohibits, inter alia, the deliberate Commission of the acts set out in Article 5 of the Birds Directive. The first sentence of paragraph 22(3) of the Federal law provides that the prohibitions contained in subparagraph (2) do not apply where the acts concerned take place in the course of 'the normal use of the land for agricultural, forestry or fishing purposes' or in the context of the 'exploitation of the products obtained from such activities'.

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The Commission complaints that paragraph 22(3) of the Federal law derogates from the prohibition contained in Article 5, as transposed in paragraph 22(2) of the Federal law, without complying with the restriction imposed by Article 9 on national legislatures wishing to adopt derogations from the general prohibitions concerning the protection of birds. The Commission claims that Article 9 of the Birds Directive authorises Member States to provide for derogation only if the protective criteria laid down in Article 9 are met. Thus, the Commission finds that there is no reference in the German legislation to the fact that derogation may be granted only, where there is no other satisfactory solution or to one of the reasons set out in Article 9(1) of the Birds Directive.

The Government of the Federal Republic of Germany replies that paragraph 22(3) of the Federal law does not constitute a derogation from the prohibitions laid down in subparagraph (2). The derogation provided for in paragraph 22(3) presuppose the absence of any intentional acts. The activities defined in the before-mentioned paragraph, such as the normal use of land, can never be regarded as constituting a deliberate failure to protect birds, because actions performed with the intention of killing, capturing, disturbing, keeping or selling wild birds cannot be described as forming part of normal agricultural, forestry or fishing activities.

It is necessary to consider first the question whether paragraph 22(3) of the Federal law constitutes a derogation from the prohibitions laid down in subparagraph (2) of the same provision. More precisely, it must be determined whether paragraph 22(3) concerns intentional acts inimical to the protection of birds. With regard to paragraph 22(3) of the Federal law, the terms of that provision refer expressly to the previous subparagraph, which contains the general prohibitions provided for in Article 5 of the Birds Directive. Since those prohibitions concern intentional acts, the exception necessarily covers the same acts. It should also be noted that paragraph 22 (3) of the Federal law does not define its scope by defining the activities harmful to the environment which are to be permissible on the basis of a subjective criterion. In fact, the German legislation permits derogation from the provisions for protection of birds as long as the acts concerned are carried out 'in the course of the normal use of the land for agricultural, forestry or fishing purposes'. That reference to a particular use of the land does not provide a precise indication of the extent to which damage to the environment is permitted. The concept of the normal use of the land and the concept of an unintentional infringement of the provisions for the protection of the birds belong to two different legal planes. Since the German legislation does not define the concept 'normal use', unintentional damage to the life and habitat of birds is not excluded from the scope of paragraph 22(3) of the Federal law in so far as such damage is necessary in the course of the normal use of the land. Thus, the argument of the Federal German Government equating the normal use of the land with acts involving no intention to infringe the rules for the protection of birds cannot be upheld. Consequently, since paragraph 22(3) of the Federal law constitutes a derogation from the prohibitions laid down in Article 5 of the Birds Directive, the German rules must meet the criteria laid down in Article 9 of the Birds Directive in order to be justified. According to that provision, Member States must restrict the derogation to cases in which there is no other satisfactory solution. The derogation must be based on at least one of the reasons listed exhaustively in subparagraphs (A), (B) and (C) of Article 9(1) and it must meet the criteria laid down in Article 9(2), the purpose of which is to limit derogation to what is strictly necessary and to enable the Commission to supervise them. In that regard, it must be held that the derogation provided for in paragraph 22(3) of the Federal law do not meet the requirements laid down in Article 9 of the Birds Directive, since the activities defined in paragraph 22(3) cannot be attributed to any of the reasons set out in Article 9 of the Birds Directive.