C-157/89, Commission v. Italy

• Author: European Commission
• Pages: 59-60

Contenidos

• Opening of the hunting season for four species as from 18 August.
• The opening of the hunting season for 19 species up until 28 February or 10 March.

Page 59

Judgment of the Court of 17 January 1991. Commission of the European Communities v Italian Republic. Failure to comply with a directive - Conservation of wild birds.

Ruling is not available in English. Source: Report on Birds Directive European Court of Justice Cases with Case Summaries, RSPB 2004

Opening of the hunting season for four species as from 18 August

Commission position: National provisions authorising the hunting of coot, moorhen, mallard and blackbird as from 18 August are incompatible with the second sentence of Article 7(4) of the Birds Directive, on the ground that the reproduction and rearing period for those species has not yet finished on that date.

Italian position: The Italian legislation complies with the requirements laid down in the second and third sentences of Article 7(4), since on the one hand, most fledglings of the species in question normally have become independent of their parents by 18 August. Moreover, the regions are empowered to vary the dates for the opening and closing of the hunting season which are fixed by the national legislation, in order to take account of particular rearing cycles or migratory movements.

Court position: According to the scientific data provided by the Commission in respect of the above species, a significant fraction of fledglings of three of the species mentioned, namely young coots, moorhen and mallards, will possibly still be in the nest or dependent on their parents for food on 18 August. In contrast, it appears from the same data that young blackbirds become independent before that date. Except as regards the blackbird, the Commission's first complaint must be upheld.

The opening of the hunting season for 19 species up until 28 February or 10 March

Commission position: National provisions authorising the hunting until 28 February of 10 migratory species and until 10 March of nine other species which, during the months of January, February and March, cross Italy on their way back to their rearing grounds in central and northern Europe do not comply with the third sentence of Article 7(4).

Italian position: Depending on the species, the migratory birds in question normally do not fly over Italy in substantial numbers before 28 February or 10 March. The Italian legislation adapted the hunting seasons to suit the requirements relating to the protection of migratory birds which are laid down in the International Convention for the Protection of Birds of 18 October 1950. It argues that in the absence of specific requirements in the Directive the requirements of the above Convention may be accepted as criteria for the adequate protection of migrant birds within the context of the Directive. Moreover, the regions are empowered to vary the dates forPage 60 the opening and closing of the hunting season which are fixed by the national legislation, in order to take account of particular rearing cycles or migratory movements.

Court position: The Convention in question, which requires migrants to be protected particularly in March, cannot constitute a fundamental element for the interpretation of the Directive, which embodies stricter requirements in terms of protection. According to the scientific data provided by the Commission for the migratory species mentioned in the application and in particular the report of the Istituto Nazionale di Biologia della Selvaggina, a substantial fraction of those species may be flying over Italian territory as early as February, with the result that the Italian legislation does not comply with the aforementioned provision of the Directive. Next to it, it must however be held that non-compliance with the Directive has not been made out sufficiently as regards two of them, namely redshank and curlew, since it is stated in the aforementioned report that redshank do not cross Italian territory until the first half of March and that they cross Italian territory in late March/early April. Except as regards redshank and curlew, the Commission's second complaint must be upheld.