Report for the Hearing in Case C-157/89

I — Legal background

1. The Community legislation

Article 18(1) of Directive 79/409/EEC 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 that the Member States are to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive within two years of its notification and that they must inform the Commission thereof forthwith. Since the Directive was notified on 6 April 1979, the period laid down by Article 18 expired on 6 April 1981.

Article 7(4) of the Directive requires Member States to prohibit the hunting of wild birds during the rearing season and during the various stages of reproduction. In the case of migratory species, Member States are required to prohibit the hunting of such species during their period of reproduction and during their return to their rearing grounds. Article 7(4) is worded as follows :

2. The relevant Italian legislation

The national provisions which are at issue in this case are as follows.

According to Article 11 of Law No 968/77 of 27 December 1977 entitled General Principles and Provisions for the Protection and Conservation of Fauna and for the Regulation of Hunting (Gazetta Ufficiale della Repubblica Italiana No 3, 4.1.1978), as amended by Decrees of the President of the Council of Ministers of 20 December 1979 (Gazetta Ufficiale della Repubblica Italiana No 1, 2.1.1980) and 4 June 1982 (Gazetta Ufficiale della Repubblica Italiana No 155, 8.6.1982) concerning the list of species which may be hunted and hunting seasons, it is prohibited to kill, capture, keep or market specimens of any species of Italian wild birds. By way of derogation from those prohibitions the following species of birds may be hunted during the periods specified below:

Also according to Article 11 of Law No 968/77, changes may be made to the list of the species which may be hunted by decree of the President of the Council of Ministers after consulting the Istituto Nazionale di Biologia della Selvaggina (National Biological Institute for Wild Animal Species) and the Comitato Tecnico Venatorio Nazionale (National Technical Committee for Hunting).

In addition, the first paragraph of Article 12 of Law No 968/77 authorizes the Italian regions to prohibit or restrict the hunting of particular species of game referred to in Article 11 during predetermined periods for important, substantiated reasons connected with level of wildlife present or on account of particular conditions affecting the environment or seasonal or climatic conditions or on account of disease or other calamities.

The regional hunting seasons for 1989/90 are as follows:

II — Background to the case

The Commission, considering that certain provisions of the Italian legislation on the hunting of birds did not comply with Directive 79/409, requested the Italian Republic by letter of 9 December 1987, pursuant to Article 169 of the Treaty, to submit its observations on the subject. There was no reply to that letter. Therefore the Commission, by letter dated 5 May 1988, delivered a reasoned opinion in accordance with Article 169. There was no response to that letter either.

III — Written procedure

By application lodged at the Court Registry on 2 May 1989, the Commission of the European Communities brought an action before the Court under Article 169 of the EEC Treaty for a declaration that the Italian Republic had failed to fulfil its obligations in relation to the conservation of wild birds.

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 asked the parties to specify, on the basis of scientific publications, their factual allegations relating to the reproduction and rearing seasons and to the migration patterns of the species of birds in question.

IV — Forms of order sought by the parties

The Commission claims that the Court should:

The Italian Government contends that the Court should:

V — Submissions and arguments of the parties

Admissibility

1. The Italian Government considers that the complaints set out in the application have already been made by the Commission in Case 262/85 which was the subject of the judgment of the Court of 8 July 1987 (Commission v Italian Republic [1987] ECR 3073). It states that the Court rejected both limbs of the third complaint in these proceedings. In consequence, the principle non bis in idem bars a fresh examination of those questions in other proceedings.

2. The Commission states that in this case the application does not relate to the provision in Italian legislation for different opening and closing dates for the hunting season in order to take account of the different periods during which birds must be protected, but to the validity of the dates chosen by the Italian legislature for the various hunting periods as regards certain species of birds.

Substance

1. The Commission maintains that the Italian rules fixing the opening and closing date of the hunting season for certain species of birds do not take account of the requirements of Article 7(4) of the Directive.

2. The Italian Government challenges the basis of the action in so far as the complaints are based on factual claims (that the reproduction and rearing season or the species referred to in the first complaint lasts until 18 August; that the species referred to in the second complaint cross Italy in January, February and March) which the Commission has to prove. It further considers that those factual claims are not proved by the bibliography contained in the application.

3. As regards the scientific basis for its claims, the Commission observes that the works cited in the application, and in particular Cramps & Simmons, Handbook of the Birds of Europe, the Middle East and North Africa (Oxford University Press, 1980-88, five volumes, 4400 pages), are essential reference works and unchallenged in international scientific circles; their merit cannot be denied by a mere assertion of the Italian Government, unsupported by bibliographical references, to the effect that, although they are concerned with southern Europe, they do not apply to Italy owing to its special features and geographical complexity.

4. The Italian Government considers that it is for the applicant to prove the alleged inadequacy of the protection offered by the national Law by reference to the individual species of migratory birds and to the geographical situation of Italy. The complaints are put forward in a general, blanket manner without taking account of the particular situation of each migratory species.

1 Language of the case: Italian.