Opinion of Mr Advocate General Van Gerven delivered on 16 January 1990

1 Original language: Dutch.

2 OJ 1979, L 103, p. 1.

3 Judgments of 8 July 1987 in Case 247/85 Commission v Belgium [1987] ECR 3029, of 8 July 1987 in Case 262/85 Commission v Italy [1987] ECR 3073, of 17 September 1987 in Case 412/85 Commission v Germany [1987] ECR 3503, of 13 October 1987 in Case 236/85 Commission v Netherlands [1987] ECR 3989 and of 27 April 1988 in Case 252/85 Commission v France [1988] ECR 2243.

4 Law of 3 November 1954 (Staatsblad 523) laying down provisions relating to hunting, as most recently amended by the Law of 7 July 1988 {Staatsblad 462).

5 Decree No J 2228 (Staatscourant 153) as most recently amended by a decree of 9 October 1987 (Staatscourant 195) on the opening and closing of the hunting season.

6 Regulation No J 1434 (Staaticourant 40)

7 Judgment of 8 April 1976 in Case 48/75 Royer [1976] ECR 497.

8 Judgment of 15 October 1986 in Case 168/85 Commission v Italy [19861 ECR 2945, paragraph 13. See also the judgments of 23 February 1988 in Case 429/85 Commission v Italy [1988] ECR 843, paragraph 12, and of 3 March 1988 in Case 116/86 Commission v Italy [1988] ECR 1323, paragraph 15.

9 Judgment of 27 April 1988 in Case 252/85 Commission v France [1988] ECR 2243, paragraph 5. See also judgment of 23 May 1985 in Case 29/84 Commission v Germany [1985] ECR 1661, paragraph 23.

10 See, inter alia, the continuation of paragraph 5 of the abovementioned Commission v France judgment of 27 April 1988.

11 In the Netherlands it appears that pseudo-legislation is to be distinguished from normal legislation in so far as it is not based on a rulemaking power conferred by a formal legislative enactment. See B. Hessel: Rechtsstaat en economische politiek, 1987, pp. 214 et seq. See also C. W. van der Pot: Handboek van het Nederlandse Staatsrecht, edited by A. M. Donner, 1983, pp. 451 et seq.

12 Annex II to the Directive lists the species of birds which may be hunted under the conditions laid down in Article 7 of the Directive.

13 This species of bird also appears in Annex I to the Directive and its habitat must therefore be the subject of special conservation measures, in accordance with Article 4 of the Directive.

14 In paragraphs 15 and 16 of the judgment in Case 247/85, cited above, the Court held as follows: In Article 1 bis of the law species of birds not listed in Annex II to the directive are classfied as game so that in principle they may be hunted. Even if those species may in fact be hunted only if the competent authorities lay down each year, for each species and for a defined area, the opening and closing dates of the hunting season, the competent authorities still have the power to authorize the commencement of hunting of species which are not mentioned in Annex II to the directive but which are listed in Article 1 bis (b), (c) and (d) of the law. In those circumstances, it is impossible to accept the argument of the Belgian Government which maintains in essence that the intended result of the directive has been attained. Article 1 bis (b), (c) and (d) of the law creates a legally ambiguous situation by not excluding the possibility that species other than those listed in Annex II to the directive may be hunted in Belgium. The orders mentioned by the Commission also demonstrate that the practical application of the contested provision does not comply with the requirements of Article 7 of the directive.

15 In the draft regulation amending the decree of 8 August 1977 (Article 3) it is provided that carrion crow, jackdaw, jay and magpie are not permitted to be hunted and that the wood pigeon may not be hunted from 1 May to 15 June.

16 In the draft regulation amending the decree of 8 August 1977 more details are given of the conditions under which the Minister for Agriculture and Fisheries may grant exemptions from the hunting prohibition in the case of the carrion crow, jackdaw, jay, magpie and wood pigeon (Articles 4 to 6). These conditions are clearly based on the conditions laid down in Article 9 of the Directive.

17 As has already been mentioned (at paragraph 15) it appears from the documents before the Court that the Council of State appeared to have doubts as to whether the regulation of 24 February 1987 had its legal basis in Article 20(2) of the Hunting Law.

18 The draft regulation amending the regulation of 24 February 1987 extends the annex appended to this regulation by including all other species of birds with the exception of the species mentioned in the decree of 8 August 1977 made by the Minister for Agriculture and Fisheries.

19 The draft regulation amending the decree of 8 August 1977 (Article 4) provides that bird traps may not be used where a licence to hunt protected species of birds is granted

20 In the draft regulation amending the decree of 8 August 1977 (Article 4) hunting from aircraft is prohibited whenever a permit is granted to hunt protected species of birds.