Report for the Hearing delivered in Case 262/85
I — Summary of the facts
1. The legal background to the case
(a) The Community legislation
Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (Official Journal 1979, L 103, p. 1), as amended by Council Directive 81/854/EEC of 19 October 1981 adapting, consequent upon the accession of Greece, Directive 79/409/EEC on the conservation of wild birds (Official Journal 1981, L 319, p. 3, hereinafter referred to as the directive), provides as follows:
Article 2 provides that:
Article 5 reads as follows:
Article 6 requires the Member States to prohibit for all the bird species referred to in Article 1, except on certain conditions in the case of the species referred to in Annex III to the directive,
Article 7 (1) provides that:
Article 7 (4) provides inter alia that:
Article 8 (1) reads as follows:
In Annex IV (a) are listed inter alia:
Article 9 (1) provides that:
(b) The Italian legislation on the conservation of wild birds
The provisions of Italian legislation which are the subject-matter of this case are in substance Articles 9, 11, 18 and 20 of Law No 968 of 27 December 1977 (Gazzetta Ufficiale della Repubblica Italiana No 3 of 4. 1. 1978), as twice amended by Orders of the President of the Council of Ministers of 20 December 1979 (Gazzetta Ufficiale della Repubblica Italiana No 1 of 2. 1. 1980) and 4 June 1982 (Gazzetta Ufficiale della Repubblica Italiana No 155 of 8. 6. 1982), hereinafter referred to as the law.
Article 9 authorizes inter alia the use of a repeating or semiautomatic rifle fitted with a device preventing more than three shots from being fired.
Article 11 contains a list of the birds which may be hunted. That list mentions 11 species of birds which are not listed in Annex II to the directive.
According to Article 11, any bird species which may be hunted may also be sold.
Finally, Article 11 lays down the dates on which hunting may begin.
Article 18 (2) provides that, after consulting the Istituto Nazionale di Biologia della Selvaggina (National Wild Animal Biology Institute), the regions may
Article 20 (t) restricts the possibility of selling birds by prohibiting
2. The background to the case
By letter dated 22 February 1984 the Commission, considering that certain provisions of the relevant Italian legislation were not in conformity with the directive and that supplementary provisions were still needed in order to implement it in full, commenced the procedure laid down in Article 169 of the EEC Treaty against Italy.
Having received no reply to that letter, the Commission, by letter dated 16 October 1984, issued a reasoned opinion. It gave the Italian Republic two months in which to comply with that opinion.
No reply was received to that letter either.
II — Written procedure
By an application lodged at the Court Registry on 20 August 1985 the Commission, acting pursuant to the second paragraph of Article 169 of the EEC Treaty, brought the matter of the Italian Republic's alleged failure to fulfil its obligations in the field of the conservation of wild birds before the Court.
The written procedure followed the normal course.
Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry. However, it put certain questions to the Commission and the Italian Government which answered them in the time allowed.
III — Conclusions of the parties
The Commission claims that the Court should:
The Italian Government contends that the Court should:
IV — Submissions and arguments put forward by the parties in the -written procedure
The Commission states that the Italian legislation in force does not comply with the directive on six points.
The Italian Government does not deny that there are certain lacunae in the Italian legislation transposing the directive but claims that the Commission's complaints are for the most part unjustified in so far as a draft Law is under scrutiny by the Italian Parliament with a view to implementing the directive in full.
First complaint: the list of birds which may be hunted
The Commission observes that the list of birds which may be hunted, as provided for in Article 11 of the law, mentions 11 species of birds which are not listed in Annex II to the directive and which must therefore be protected. Even if the Italian authorities consider some species potentially harmful, that is not a sufficient reason for a derogation from the protection of those species.
The Italian Government does not dispute that complaint but observes that jays and magpies were included in the list of birds which may be hunted owing to the ... potentially harmful character ... of those species (see Article 4 of the Order of 4 June 1982) and that therefore their inclusion could be justified in accordance with the third indent of Article 9 (1) (a) of the directive.
Second complaint: the marketing of birds
The Commission contends that, under Article 11 of the law, any species which may be hunted may also be marketed, contrary to Article 6 and Annex III to the directive. The Italian legislation contains no prohibition on the marketing of all live or dead birds. In fact, contrary to the directive, the Italian legislation does not prohibit
The Commission also points out that the provisions in Article 6 (2) to (4) of the directive are not to be found in the Italian legislation.
The Italian Government does not dispute that the present Italian legislation still requires some adjustment as regards the prohibition against the marketing of birds.
However, it refers to the provisions of Article 20 (t) of the law which it claims considerably restrict the possibility of marketing birds.
Tinrd complaint: hunting seasons
The Commission alleges in its application and in its reasoned opinion that Article 11 of the law fixes the dates for the opening of the hunting season without taking account of the rearing season, the various stages of reproduction and, in the case of migratory species, their return to their rearing grounds, as provided for in Article 7 (4) of the directive.
In reply to the arguments of the Italian Government set out in the defence, the Commission states that the Italian legislation does not expressly prohibit hunting during the abovementioned periods. Furthermore, the dates laid down in the Italian legislation do not correspond to the actual periods of reproduction and rearing and the periods in which migratory species return to their rearing grounds.
The Commission states that the hunting season begins on 18 August, a time when various species of nesting birds are still in Italy and when bird species having the most ornithological importance are traversing the Italian peninsula. Hunting ends on 10 March when migratory birds are still on the way to their rearing grounds after starting in the first few days of February.
That hunting period is still maintained in Italy, although the scientific world and the bodies interested in protecting birds have proposed that the opening of the hunting season should be fixed at a single date not before the third Sunday in September. That date has remained the date of the opening of the hunting season for non-migratory game, but 18 August has become the date of opening of the hunting season for numerous species of birds, including all those which may be hunted in the wet regions.
The Italian authorities were requested to fix the close of the hunting season at a date no later than 31 January, but the pressures exerted by the hunting fraternity, which wished to maintain the date of 31 March as the close of the hunting season for birds, which was subsequently changed to 28 February and 10 March, depending on the species, by the Order of 20 December 1979, prevailed.
The Italian Government replies that Article 11 of the law fixes different dates for the opening and closing of the hunting season for different species precisely in view of their different nesting periods and different stages of reproduction and rearing. As regards birds returning to their rearing grounds, the Order of 20 December 1979 was adopted in order to bring Article 11 of the law into line with the International Convention for the Protection of Birds of 18 October 1950 which in general provides for the protection of migratory birds during their return journey to their rearing grounds in March, April, May, June and July. The hunting periods also take account of the opinions of two Italian scientific institutes.
The Italian Government also points out that the Commission has never complained, either at the pre-litigation stage or in its application, that the choice of dates for the opening and closing of the hunting season are bad. Consequently, it considers those complaints inadmissible.
In the alternative the Italian Government argues that, although there are nesting birds in Italy in the month of August, they are sedentary species the hunting of which is authorized from the third Sunday in September and not from 18 August.
It also admits that from August onwards migratory birds, some of considerable ornithological importance, traverse the Italian peninsula. However, those birds are not returning to their rearing grounds but are at the first stage of migration, that is to say starting out from their places of origin.
Fourth complaint: the use of repeating and semiautomatic rifles
The Commission considers that Article 9 of the law, which authorizes the use of repeating and semiautomatic rifles capable of firing three shots, is contrary to Article 8 (1) and Annex IV to the directive.
It points out in this regard that Annex IV sets out the means, arrangements or methods for the large-scale or selective capture or killing of birds which are prohibited owing to the excessive pressure which they exert or might exert on the population level of the species concerned. It is a restrictive provision and must therefore be interpreted narrowly. In order to prevent hunting from becoming an absolute massacre, the directive provides for certain means to be prohibited, including the use of semiautomatic or automatic weapons capable of firing more than two shots consecutively.
For that reason the directive allows only two rounds of ammunition in the magazine: the round in the firing chamber is not taken into consideration.
The Italian Government takes the view that the Italian legislation is not contrary to Article 8 (1) of the directive. The device to which the law refers in order to reduce the number of possible shots consists of a mechanism to make it impossible to introduce more than two rounds of ammunition into the magazine; the third is introduced directly into the firing chamber. The law therefore makes it impossible for the weapon to fire more than three shots.
If the directive was intended to prohibit the third shot, it should have contained an express provision to that effect.
Fifth complaint: the powers given to regions to permit the capture and sale of migratory birds
In the Commission's view, Article 18 (2) of the law shows that the regions have broad powers to authorize the capture and sale of migratory birds even in the close season, which is clearly incompatible with the provisions of Article 7 (4) of the directive. Furthermore, the opinion of the Istituto Nazionale di Biologia della Selvaggina is not binding and therefore of no weight. In addition, the authorizations to capture birds relate to species of migratory birds to be determined from among those referred to in Article 11 of the law (namely the species which may be hunted). However, various species must be protected in implementation of the directive and the fact that regions may authorize their capture implies a breach of the combined provisions of Article 7 (1) and Article 5 of the directive and Annex II thereto.
Article 18 provides for capturing arrangements to be authorized without any restriction, which allows certain means of capturing birds prohibited by the directive, such as nets, snares and so forth, to be used in the regions. As an example, the Commission cites the region of Friuli-Venezia-Giulia in which, according to the information available to it, the use of nets and snares is permitted.
Finally, the Commission points out that the use of birds at traditional fairs and markets by bird enthusiasts is a reason for capturing migratory birds which is not to be found in any provision of the directive.
The Italian Government replies that Article 18 (2) of the law does not confer a wide power on the regions. On the contrary, the regions must adopt precise regulations on capturing arrangements for migratory birds. The power conferred on the regions by the law is, moreover, exercised in consultation with the aforementioned institute. Even if the opinions of that institute are not binding, the regions may not depart from them except for serious reasons and after giving a detailed explanation. Finally, that power may also be exercised with regard to the capture and keeping of birds by bird fanciers at traditional fairs and markets; the provision is therefore justified under Article 2 of the directive, which allows economic and recreational requirements to be taken into account, and under Article 9 (1) (b) and (c) of the directive.
Sixth complaint: the use of live decoys
In its application and reasoned opinion the Commission complains that Article 18 of the law authorizes the use of migratory birds as live decoys for hunting in breach of Article 8 of the directive. In its reply it states that the provisions of the directive, in particular Article 8 and Annex IV, are not fully and correctly transposed in so far as the law does not prohibit the use of live decoys which are not only blind but also mutilated. The term mutilated has a wide meaning; it does not refer only to the size of birds' wings.
The Italian Government points out that the prohibition laid down in the directive does not concern the use of birds as live decoys. Article 18 (2) of the law authorizes the use of migratory birds as live decoys but not the blinding or mutilation of such birds. On the contrary, Article 20 (o) of Law No 968 expressly prohibits the use of blind live decoys ... .
The Italian Government contends that the charge that the Italian law does not prohibit the use of birds which are not only blind but also mutilated is an inadmissible extension of the original complaint.
1 Language of the Case: Italian.