C-262/85, Commission v. Italy
| Author | European Commission |
| Pages | 53-56 |
Page 53
Judgment of the Court of 8 July 1987. Commission of the European Communities v Italian 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=61985J0262
The Commission notes that Italian legislation mentions 11 bird species, not listed in Annex II to the Birds Directive, which may be hunted. However, according to Article 7 of the Birds Directive, only the species listed in Annex II may be hunted.
The Italian Government does not dispute that this complaint is well founded. It observes, however, that 2 of the 11 species in question (jay and magpie) were included in the list of birds which may be hunted because of their potentially harmful character. This derogation is therefore justified under the third indent of Article 9(1)(a) of the Birds Directive.
In this regard, it should be stated that Article 7 authorizes Member States to allow hunting of the species listed in Annex II under certain conditions and within certain limits. It is clear from the general scheme of protection provided for in the Directive that national legislation may not extend the list contained in Annex II indicating the bird species which may be hunted. As regards the argument of the Italian Government concerning the third indent of Article 9(1)(a), it should be noted that that provision does indeed allow Member States to derogate from the general scheme of protection in way which goes further than is provided for in Article 7. However, as stated above, such a derogation must comply with the three conditions of Article 9: first, the Member State must restrict the derogation to cases in which there is no other satisfactory solution; secondly, the derogation must be based on at least one of the reasons listed exhaustively in Article 9 (1) (a), (b) and (c); thirdly, the derogation must comply with the precise formal conditions set out in Article 9(2), which are intended to limit derogations to what is strictly necessary and to enable the Commission to supervise them. In this regard the Italian government has not put forward any evidence proving that it was necessary to include jay and magpie on the Italian list of birds which may be hunted in order to prevent serious damage to crops, livestock, forests, fisheries or water and that no other satisfactory solution existed. Neither has it indicated the reasons for which the listing of those species was, in its view, the only satisfactory solution to prevent serious damage. Finally, the provision in question does not specify the conditions of risk and the circumstances of time and place under which the derogation may be granted or the controls which will be carried out. Therefore, the inclusion of jay and magpie amongst the birds which may be hunted cannot be justified by the third indent of Article 9(1)(a). The first complaint is well founded.
The Commission points out that Italian legislation allows the marketing of all the species of birds which may be hunted. However, Article 6 prohibits trade in all live or dead birds or parts of such birds with the exception of the species listed in Annex III to the Directive. Finally, the provisions of Article 6(2) to (4) are not to be found in the Italian legislation.
The Italian Government does not dispute that the Italian rules are not entirely in accordance with the Directive in this regard. It points out, however, that they prohibit the sale of woodcock and of dead birds smaller than thrushes, except starlings, sparrows and skylarks, during the period when the hunting of those birds is allowed.
It should be borne in mind in this regard that Article 6(1) requires the Member States to impose a general prohibition on the marketing of all the birds covered by the Directive, alive or dead, and of any readily recognizable parts or derivatives of such birds. Article 6(2) provides that marketing is not to be prohibited in respect of the seven species referred to in Annex III/1, provided that the birds have been legally killed or captured or otherwise legally acquired. Since the list in Annex III/1 concerns only seven bird species, whereas the list of birds which may be hunted according to the national legislation includes 72 species, it is plain that the provision of Italian law in question does not comply with the requirements of the Directive. Furthermore, it is clear from the protection to be afforded under the Directive that it is intended to avoid a situation in which all the species that may be hunted may also be marketed because of the pressure which marketing may exert on hunting and consequently on the population level of the species in question. As regards the 10 species specified in Annex III/2, it is not disputed that the Italian legislation does not comply with the obligations arising under Article 6(3). As far as concerns the reference by the Italian Government to Article 20(t) of the national law, the Commission correctly notes that Article 6(1) prohibits the marketing of all species of birds irrespective of their size. Even if the Italian legislation does not therefore permit the marketing of all bird species which may be hunted, it must bePage 54 held that Article 11, even in conjunction with Article 20(t) of the national law, does not constitute a complete transposition of the Directive. The second complaint must therefore be upheld.
The Commission complains that in national legislation the Italian Government fixes the dates when hunting may begin without taking account of the rearing season, the various stages of reproduction and, in the case of migratory species, the return to their rearing grounds, as required by Article 7(4). In its reply to the defence the Commission has pointed out that the Italian legislation does not expressly prohibit hunting during the abovementioned periods. The hunting season begins on 18 August, a time when various species of nesting birds are either still in Italy or are traversing the Italian Peninsula. In this respect the scientific community has proposed that the beginning of the hunting season should be fixed at a single date not earlier than the third Sunday in September. Hunting finishes on 10 March whereas migratory birds are still on their way to their rearing grounds from the first days of February. It has been requested that the closing of the hunting season should be fixed at a date not later than 31 January.
The Italian Government has stated in reply that Article 7(4) does not specify particular dates on which the hunting season should begin or end. National legislation provides for different dates for the opening and closing of the hunting season for the various species precisely because their rearing seasons and stages of reproduction differ. As regards the birds' return to their rearing grounds, the Decree of 20 September 1979 provided that the hunting of certain species of migratory birds was to end on 28 February and for other species on 10 March. The complaint is ill-founded because it does not address itself to the question whether the dates chosen for the opening and closing of the hunting season are appropriate .
As regards the question whether the complaint made in the pre-litigation procedure and set out in the application is well founded, it must be noted first of all that, contrary to the Commission' s contention, the Italian legislation takes account of the various periods mentioned in Article 7(4) in which birds are to be protected. The Italian legislation does fix different dates for the opening and closing of the hunting season for the various species of birds having regard to their different rearing seasons and their different stages of reproduction and, in the case of migratory birds, their return to their rearing grounds. In this regard the Commission' s complaint cannot be upheld. As regards the complaint that the dates chosen in the Italian legislation for the opening and closing of the hunting season for certain species of birds are not appropriate, it must be noted that the Commission raised this point for the first time in its reply. Since this point extends the scope of the complaint made in the pre-litigation procedure and in the application, the question concerning the appropriateness of the dates chosen for the different hunting seasons must be disregarded. In those circumstances the Commission's third complaint must be dismissed.
The Commission states that national legislation authorizes the use of repeating and semi-automatic weapons capable of firing three shots and that this provision of Italian law is not a correct application of Article 8(1) and Annex IV thereto.
The Italian Government, on the other hand, contends that the provision in question provides for the fitting of a technical device in order to reduce the number of shots. That mechanism is intended to make it impossible to introduce more than two rounds of ammunition into the magazine whilst a third may be introduced directly into the firing chamber. The Italian rules are therefore not contrary to the provision in the Directive.
Given those two diverging views, the wording of the Italian provision and of the provision in the Directive must first be recalled. National legislation provides that "hunting with a repeating or semi-automatic rifle fitted with a device preventing more than three shots from being fired" is allowed. However, Article 8(1), in conjunction with Annex IV (a) thereto, provides that Member States are to prohibit, in particular, semi-automatic or automatic weapons with a magazine capable of holding more than two rounds of ammunition. From a comparison of those provisions it may be concluded that national legislation does in fact prohibit weapons capable of discharging more than three rounds of ammunition. Moreover, it is undisputed that the Directive does not prohibit the insertion of a third round of ammunition into the gun's firing chamber. Therefore, legislation authorizing weapons capable of firing three consecutive rounds is not contrary to the Directive, provided that it is ensured that the magazines of those weapons can hold only two rounds of ammunition. It must be noted in this regard that the Italian provision clearly restricts the use of weapons to those which can discharge only three consecutive rounds. Since a round of ammunition may be in the gun's firing chamber, the reference in the Italian provision in question to a device preventing more than three shots from being fired is sufficient to guarantee that thePage 55 magazine cannot hold more than two rounds of ammunition. In those circumstances, national legislation must be regarded as providing a proper guarantee of the full implementation of Article 8(1). The fourth complaint of the Commission is therefore unfounded.
According to the Commission, national legislation is incompatible with Articles 7 and 8 in so far as it confers on the Italian regions a wide power to authorize the capture by any method and the sale of migratory birds even in the close season.
The Italian Government denies that the provision in question confers a wide discretion on the regions and maintains that the regions may not depart from the wording of the law and of the Directive. They must lay down precise rules governing arrangements for capturing migratory birds. The use of birds for recreational purposes at fairs and traditional markets is possible under Article 2. Finally, migratory species may be captured only in limited numbers fixed in advance for each species. This provision is therefore a derogation provided for by Article 9(1).
That difference of view necessitates an initial clarification of the scope of the complaint, which must be understood as not objecting to the power to regulate hunting conferred on the regions or to the legislative and administrative provisions adopted by the regions. The complaint only concerns the fact that national legislation does not transpose, or require the regions to take into account, the obligations and requirements of the Directive concerning methods of hunting migratory birds, the sale of migratory birds and hunting seasons for such birds. National legislation provides that, after consulting a particular scientific institute, the regions may operate, or authorize the operation, by means of specific regulations, of arrangements for capturing and selling migratory birds with a view to their being kept. To that end, they may authorize the use of means and arrangements for capturing birds, fix their own trapping seasons and draw up a list of birds which may be hunted even outside the periods when hunting is allowed under national legislation. However, another provision of national legislation states that migratory birds may only be captured with a view to their being kept for use as live decoys in cover-shooting or for recreational purposes in traditional fairs and markets. Such species may be trapped in limited numbers previously fixed for each species. In this regard it must be noted that national legislation gives the regions the power to regulate the hunting seasons for migratory birds and the means, arrangements or methods for their capture without taking into account the requirements of Articles 7 and 8. The Italian Government puts forward three arguments on this point; first, that the rule-making power may only be exercised in consultation with a scientific institute; secondly, that the provisions of national legislation are justified under Article 2; and thirdly that that provision could be authorized under Article 9(1)(c). As regards the first argument, it must be stated that, even though the regions are obliged to consult a scientific institute before implementing their rules, the opinion of the institute is not binding and therefore that obligation does not guarantee that the requirements of the Directive will be respected. As regards the second argument, it must be stressed that Article 2, as observed above, is not an independent derogation from the obligations and requirements of the Directive. As regards the third argument concerning Article 9(1)(c), that provision authorizes Member States to derogate, inter alia, from Articles 7 and 8 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. It is clear that the capture and sale of birds, even outside the hunting season, with a view to keeping them for use as live decoys or for recreational purposes in fairs and markets may constitute judicious use authorized by Article 9(1)(c). However, it must be observed first of all that the provision concerned makes no reference to Article 9(1), which provides that a derogation from Articles 7 and 8 may be granted only if there is no other satisfactory solution. Secondly, provision of national law, which authorizes the regions to permit the use of means and arrangements for capturing birds, to fix the periods in which capturing is permitted and to draw up the list of birds which may be hunted, does not, contrary to the requirements of Article 9(2), specify the means, arrangements or methods authorized for the capture or killing of birds, the circumstances of time and place under which the derogations may be granted or the species covered by the derogations. Such criteria and conditions are necessary to ensure that the derogation is applied in a strictly controlled and selective manner. Since national legislation does not itself establish the criteria and conditions provided for in Article 9(2) or require the regions to take account of those criteria and conditions, it introduces an element of uncertainty as regards the obligations which the regions must observe when adopting their regulations. Therefore, there is no guarantee that the capture of certain species of birds will be limited to the strict minimum, that the period of capture will not coincide unnecessarily with periods in which the Directive aims to provide particular protection or that the means, arrangements or methods for capture are not large-scale, non-selective or capable of causing the local disappearance of a species. It follows that the essential elements of Article 9 have not been transposed completely, clearly and unequivocally into the Italian rules. Therefore, the Commission' s fifth complaint must be upheld.
Page 56
The Commission complains that national legislation authorizes the use of migratory birds as live decoys for hunting, in breach of Article 8. In its reply it explained that the complaint was not that national legislation authorizes the use of live decoys but that national legislation does not prohibit the blinding and mutilation of birds used as decoys.
In reply to that point the Italian Government has stated that national legislation only authorizes the use of migratory birds as live decoys but does not authorize the blinding or mutilation of those birds. Another provision expressly prohibits the use of blinded live decoys. The point made in the reply is, in its view, an inadmissible extension of the original complaint.
As regards the argument of the Italian Government alleging an inadmissible extension of the complaint, it must be stated that, in its application, the Commission repeated verbatim the complaint which it had already made in the pre-litigation procedure, namely that Article 8 had not been transposed into the Italian rules. In its reply the Commission pointed out that, through its reference to Annex IV to the Directive, Article 8 prohibits the use not only of blinded live decoys but also of mutilated live decoys. Although the complaint formulated by the Commission in the pre-litigation procedure and in the application was unfortunately very brief, it nevertheless contains all the information which the Italian government needed to understand the complaint made against it and to defend itself. All the information needed to assess the scope of the complaint is given: the provision infringed, namely Article 8, the rule of national law considered to be contrary to that provision, namely Article 18 of the national law, and the basis of the complaint, namely the granting of authorization contrary to the provisions of Article 8. The objection of inadmissibility raised by the Italian government cannot therefore be upheld. As regards the substance of the complaint, it must be noted that Article 18(2) of the law allows the regions to authorize the use of migratory birds as live decoys in cover-shooting and Article 20(o) prohibits only the use of blinded live decoys. It therefore follows that Article 18(2) in conjunction with Article 20(o) of the law does not expressly prohibit the regions from authorizing the keeping and a fortiori the use of migratory species as mutilated live decoys in cover-shooting. Such use is prohibited by the Directive. The Commission' s complaint must therefore be upheld.
