Report for the Hearing in Case C-334/89

I — Legal background

Directive 79/409/EEC is aimed at the conservation of all species of birds naturally occurring in the wild state in the European territory of the Member States. Its object is the protection, management and control of those species and their exploitation. The species mentioned in Annex I to the directive are the subject of the special conservation measures concerning their habitat in order to ensure their survival and reproduction in their area of distribution, pursuant to Article 4(1) of the directive. Articles 15 and 17 authorize the Commission, assisted by a special committee, to amend Annex I in order to adapt it to scientific and technical progress. Such an adaptation was made by Directive 85/411/EEC, the annex to which replaces Annex I to Directive 79/409.

The new Annex I lists 144 species, as against 74 in the original. Article 2 of Directive 85/411 provides that Member States must bring into force the implementing provisions before 31 July 1986 and inform the Commission forthwith.

II — Pre-litigation procedure

Since it received no notification of the provisions implementing Directive 85/411 in Italy, the Commission, by letter dated 26 March 1987, initiated the procedure under Article 169 of the EEC Treaty. There was no reply to that letter, and it issued a reasoned opinion on 12 September 1988. There was no reply to the reasoned opinion.

III — Written procedure

By application lodged at the Court Registry on 30 October 1989 the Commission, pursuant to Article 169 of the EEC Treaty, brought the matter of the alleged failure by the Italian Republic to fulfil its obligations in respect of the conservation of wild birds before the Court.

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.

IV — Forms of order sought

The Commission claims that the Court should:

The Italian Government contends that the Court should:

VI — Pleas in law and arguments of the parties

1. The Commission states that Article 2 of Directive 85/411 requires Member States to inform it forthwith of the measures adopted to implement the directive. The Italian authorities have given the Commission no information on the subject. The Commission is therefore compelled to conclude that the Italian Republic has not adopted the measures necessary to comply with Directive 85/411, although the period laid down in Article 2 of the directive expired on 31 July 1986.

2. The Italian Government states that in the application in Case 262/85 (Commission v Italy), which led to the judgment of the Court of 8 July 1987 ([1987] ECR 3073), the Commission did not allege any failure to implement Article 4 of the directive in respect of the version of Annex I which was then in force. In the Italian Government's view that indicates that the Commission considered that the situation in Italy complied with that provision of the directive in respect of the original Annex I.

1 Language of the case: Italian.