C-182/02 (reference for a preliminary ruling) - Ligue pour la protection des oiseaux and Others

AuthorEuropean Commission
Pages100-102

Page 100

Judgment of the Court (Sixth Chamber) of 16 October 2003. - Ligue pour la protection des oiseaux and Others v Premier ministre and Ministre de l'Amnagement du territoire et de l'Environnement. - Reference for a preliminary ruling: Conseil d'Etat - France. - Directive 79/409/EEC - Conservation of wild birds - Opening and closing dates for hunting - Derogations. http://europa.eu.int/eur-lex/lex/LexUriServ/LexUriServ.do?uri=CELEX:62002J0182:EN:HTML

The Council of State referred to the Court for a preliminary ruling under Article 234 EC two questions on the interpretation of Article 9(1)(c) of the Birds Directive. Those questions were raised in actions brought before the League for the Protection of Birds, the Association for the Protection of Wild Animals and the Anti-Hunting Union respectively seeking the annulment, for misuse of powers, of Decree No 2000-754 of 1 August 2000 relating to the dates for the hunting of migratory birds and waterfowl and amending the Rural Code (hereinafter `the contested decree'). Article 2 of the contested decree provides that derogations from prohibitions on hunting outside the hunting periods set by the administrative authorities and during certain vulnerable periods for birds may be granted by prefects (departmental heads of administration) to permit the capture, keeping or other judicious use of geese, wood pigeons and thrush in small numbers, until 20 February. An order of the Minister responsible for hunting, adopted following consultation with the National Council for Hunting and Wildlife, lays down the conditions in which such uses may be authorised and the procedures for the controls to be implemented. The Minister also determines, after consultation with the National Hunting Federation and the National Authority for Hunting and Wildlife, the maximum number of birds, by species, which may be taken in each department. Prefects establish the maximum number of birds which may be taken by beneficiaries of thePage 101 derogation. In the actions brought before the Council of State to annul the contested decree for misuse of powers, that court in essence stated that Article 2 of that decree is intended to implement Article 9(1). According to the Council of State, the assessment of the legality of Article 2 depends, first, on whether Article 9(1)(c) permits derogations from the opening and closing dates for hunting set in the light of the objectives specified in Article 7(4) and, second, if so, what the criteria and limits are when laying down those derogations. The Council of State, after annulling Article 1 of the contested decree in part in so far as it related to the opening or closing dates for hunting certain species, decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:

'1. Does Article 9(1)(c) of Birds Directive permit a Member State to derogate from the opening and closing dates for hunting which follow from consideration of the objectives specified in Article 7(4) thereof?

  1. If so, what are the criteria which make it possible to establish the limits of that derogation?'

The first question

Article 9(1)(c) provides that Member States may derogate from, inter alia, Article 7 where there is no other satisfactory solution, 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 therefore appears that Article 9(1)(c) permits authorisation, in compliance with the conditions set out in that provision, of the capture, keeping or other judicious use of certain birds during the periods mentioned in Article 7(4), during which the survival of wild birds is at particular risk. According to the case-law of the Court, Article 9 authorises Member States to derogate from provisions relating, inter alia, to hunting. The Court has also accepted the possibility of derogating from the prohibition on hunting species of birds not listed in Annex II to the Directive, to which Article 7(1) refers, in particular for the reason set out in Article 9(1)(c). It is clear from the foregoing that the hunting of wild birds for recreational purposes during the periods mentioned in Article 7(4) may constitute a judicious use authorised by Article 9(1)(c) of that Directive, as do the capture and sale of wild birds even outside the hunting season with a view to keeping them for use as live decoys or to using them for recreational purposes in fairs and markets.

The answer to the first question must therefore be that Article 9(1)(c) permits a Member State to derogate from the opening and closing dates for hunting which follow from consideration of the objectives set out in Article 7(4).

The second question

First, Article 9 authorises Member States to derogate from the general prohibition on hunting protected species which is laid down in Articles 5 and 7 only by measures which refer in sufficient detail to the factors mentioned in Article 9(1) and (2). A national measure which permits derogating from Article 7(4) by virtue of Article 9(1), such as the measure cited in paragraph 5 of this judgment, does not comply with the latter provision if it fails to refer to the fact that such a derogation can be granted only where there is no other satisfactory solution.

Second, as regards hunting in particular, that activity can be permitted pursuant to Article 9(1)(c) only if:

- there is no other satisfactory solution;

- it is carried out under strictly supervised conditions and on a selective basis;

- it applies only to certain birds in small numbers.

The first of the conditions set out in the preceding paragraph cannot be considered to have been satisfied when the hunting period under a derogation coincides, without need, with periods in which the Directive aims to provide particular protection. There would be no such need if the sole purpose of the derogation authorising hunting were to extend the hunting periods for certain species of birds in territories which they already frequent during the hunting periods fixed in accordance with Article 7. The third of those conditions cannot be satisfied if a hunting derogation does not ensure the maintenance of the population of the species concerned at a satisfactory level. If that condition is not fulfilled, the use of birds for recreational hunting cannot, in any event, be considered judicious and, accordingly, acceptable for the purposes of the 11th recital in the preamble to the Directive.

Finally, the measures under which hunting is authorised pursuant to Article 9(1)(c) must, in accordance with Article 9(2), specify:

- the species which are subject to the derogations;

- the means, arrangements or methods authorised for capture or killing;

- the conditions of risk and the circumstances of time and place under which such derogations may be granted;

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- the authority empowered to declare that the required conditions obtain and to decide what means, arrangements or methods may be used, within what limits and by whom;

- the controls which will be carried out.

In the light of the foregoing, the answer to the second question must be that Article 9 must be interpreted as allowing hunting to be authorised pursuant to Article 9(1)(c) where:

- there is no other satisfactory solution. That condition would not be met, inter alia, if the sole purpose of the derogation authorising hunting were to extend the hunting periods for certain species of birds in territories which they already frequent during the hunting periods fixed in accordance with Article 7;

- it is carried out under strictly supervised conditions and on a selective basis;

- it applies only to certain birds in small numbers; - mention is made of:

(a) the species which are subject to the derogations;

(b) the means, arrangements or methods authorised for capture or killing;

(c) the conditions of risk and the circumstances of time and place under which such derogations may be granted;

(d) the authority empowered to declare that the required conditions obtain and to decide what means, arrangements or methods may be used, within what limits and by whom;

(e) the controls which will be carried out.

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