C-10/96 (reference for a preliminary ruling) - ASBL
| Author | European Commission |
| Pages | 71-72 |
Page 71
Judgment of the Court (Third Chamber) of 12 December 1996. - Ligue royale belge pour la protection des oiseaux ASBL and SociÈtÈ d'Ètudes ornithologiques AVES ASBL v RÈgion Wallonne, intervener: FÈdÈration royale ornithologique belge ASBL. - Reference for a preliminary ruling: Conseil d'Etat - Belgium. - Council Directive 79/409/EEC on the conservation of wild birds - Prohibition of capture - Derogations. http://europa.eu.int/eur-lex/lex/LexUriServ/LexUriServ.do?uri=CELEX:61996J0010:EN:HTML
The Belgian Conseil d'…tat submitted for a preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) two questions on the interpretation of the Birds Directive. Those questions arose in an action for annulment brought by the Royal Belgian League for the Protection of Birds (hereinafter `the Ligue Royale') and the Society for Bird Studies AVES (hereinafter 'AVES') against two orders of the Region of Wallonia, which, inter alia, authorize the capture, under specified conditions, of certain species of birds protected by the Directive.
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Do Articles 5, 9 and 18 of the Birds Directive allow a Member State to take account, on a decreasing basis and over a specified period, of the fact that the prohibition of capturing birds for recreational purposes would compel numerous fanciers to alter their installations and to abandon certain habits where that State recognizes that breeding is possible but is not yet feasible on a large scale for that reason?
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Do Articles 5, 9 and 18 of the Birds Directive allow Member States, and if so to what extent, to authorize the capture of birds living naturally in the wild state within European territory with a view to obviating, in bird breeding for recreational purposes, the problems of consanguinity which would result from too many endogenous crossings?
By its first question, the national court is asking in substance whether the Directive, and in particular Article 9(1)(c) thereof, must be interpreted as meaning that a Member State may, on a decreasing basis and for a limited period, authorize the capture of certain protected species in order to enable bird fanciers to stock their aviaries, where breeding and reproduction of those species in captivity are possible but not yet practicable on a large scale by reason of the fact that many fanciers would be compelled to alter their installations and change their habits.
It should first be pointed out that the Court has held, that the capture and sale of wild birds 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). It cannot therefore be ruled out that the capture of certain protected species for recreational purposes, such as that intended to enable fanciers to stock their aviaries, may also constitute judicious use within the meaning of Article 9(1)(c). That said, it must, however, be pointed out that a derogation from the system of protection established by the Directive and, in particular, from the prohibition of killing orPage 72 capturing protected species, as laid down in Article 5(a), can be accorded only if there is no other satisfactory solution. The breeding and reproduction of protected species in captivity may constitute such a solution if they prove to be possible. It should be observed in that regard that, as is clear from the documents before the Court, the breeding and reproduction in captivity of the species concerned in the main proceedings are not only scientifically and technically feasible, but those activities have also been successfully carried on by some breeders in Wallonia and, on a larger scale, by breeders in Flanders. In those circumstances, breeding and reproduction in captivity could be regarded as not constituting an `other satisfactory solution' only if it were established that, were it not for the capture of birds in the wild, those activities could not prosper. Consequently, the fact that the breeding and reproduction in captivity of the species concerned are not yet feasible on a large scale by reason of the installations and the inveterate habits of bird fanciers, habits which, moreover, have been encouraged by domestic rules derogating from the general scheme of the Directive, is not in itself such as to cast doubt on the satisfactory nature of the alternative solution to capturing birds in the wild. In view of the foregoing considerations, the answer to the first question must be that the Directive, and in particular Article 9(1)(c) thereof, must be interpreted as meaning that a Member State may not, on a decreasing basis and for a limited period, authorize the capture of certain protected species in order to enable bird fanciers to stock their aviaries, where breeding and reproduction of those species in captivity are possible but are not yet practicable on a large scale by reason of the fact that many fanciers would be compelled to alter their installations and change their habits.
By its second question, the national court seeks to ascertain whether, and if so to what extent, national authorities are authorized under the Directive, and in particular under Article 9(1)(c) thereof, to allow the capture of protected species with a view to obviating, in bird breeding for recreational purposes, the problems of consanguinity resulting from too many endogenous crossings.
It must first be noted that, if the capture of protected species, in so far as it is intended to enable fanciers to stock their aviaries, may, as held in paragraph 16 of this judgment, constitute judicious use within the meaning of Article 9(1)(c), the same must hold true as regards the capture of protected species for the purpose of obviating the problems of consanguinity in bird breeding for recreational purposes. It must next be borne in mind that, as already indicated in paragraph 17 of this judgment, a derogation from Article 5(a) may be accorded only if there is no other satisfactory solution. In particular, that condition would not be met if it were possible to obviate the problems of consanguinity by cooperation and exchanges of specimens between breeding establishments. Finally, as regards the extent to which the capture of protected species may be permitted, it is for the competent authorities of the Member State concerned to fix the number of wild specimens which may be captured at the level of what proves to be objectively necessary in order to ensure sufficient genetic diversity of the species bred in captivity, subject always to observance of the maximum limit of `small numbers' referred to in Article 9(1)(c).
The answer to the second question must therefore be that national authorities are authorized under the Directive, and in particular under Article 9(1)(c) thereof, to permit the capture of protected species with a view to obviating, in bird breeding for recreational purposes, the problems of consanguinity which would result from too many endogenous crossings, on condition that there is no other satisfactory solution, it being understood that the number of specimens which may be captured must be fixed at the level of what proves to be objectively necessary to provide a solution for those problems, subject always to observance of the maximum limit of `small numbers' referred to in that provision.
