Opinion of Mr Advocate General Van Gerven delivered on 21 September 1993

1 Original language: Dutch.

2 OJ 1979 L 103, p. 1.

3 These articles derive from Decree No 86-571 of 14 March 1986, JORF of 18 March 1986, p. 4521, as amended.

4 For the wild species not mentioned in Article R.224-5, Article R.224-4 prescribes the earliest permitted general opening date and the latest permitted general closing date. The earliest general opening date is different for four geographical parts of France (the first Sunday in September in Corsica, the second Sunday in September in the southeastern part, the third Sunday in September in the southwestern part and the fourth Sunday in September in the northern and central part) while the latest general closing date for the whole country is the last day of February.

5 The earliest permitted opening date is the general opening date as laid down in Article R.224-4, except for the turtle dove for which it is 15 August.

6 The earliest permitted opening date for all waterfowl is the general earliest opening date as laid down in Article R.224-4.

7 The report thus contains no information concerning migratory birds other than waterfowl. At the hearing the expert called by the French Government confirmed that scientific knowledge concerning those other migratory birds is more limited. Further research may show that their migration exhibits a greater geographical range than is the case for waterfowl. My Opinion concerns all migratory birds; see however paragraph 17 and footnotes 21 and 31 in particular for the other migratory birds.

8 Thus it is apparent from the study that the commencement of the pre-mating migration of teal varies from year to year between the beginning of January and the end of February, while the commencement of the pre-mating migration of garganey always falls between the middle and the end of February.

9 AH these data arc expressed with ten days (a decade) as the base unit — each month contains three decades. Thus it is stated for the greylag goose that (1) the commencement of pre-mating migration is the first decade of February; (2) this commencement varies from the first to the third decade of February; and (3) the period of maximum migratory activity is from the second decade of February to the first decade of March.

10 At the hearing it was stated by the Rassemblement des Opposants à la Chasse — without contradiction by the other parties — that the Muséum National d'Histoire Naturelle expressly distanced itself from this circular, commenting that the contents had no scientific basis.

11 See footnote 8 for an explanation of this unit.

12 Commission v Italy[1991] ECR I-57.

13 The judgment also concerns the second sentence of that provision. In the following quotation I omit the references to that sentence.

14 Case C-157/89, cited above, paragraphs 12-14 of the judg-ment.

15 I shall discuss no further the prohibition in the same sentence on hunting migratory birds during their period of reproduction or the analogous prohibition in the previous sentence, since they are not in issue in this case. My reasoning is however also applicable, mutatis mutandis, to those prohibitions.

16 Judgment in Case C-57/89 Commission v Germany [1991] ECR. I-883, at paragraph 22, referring to the judgments in Case 247/85 Commission v Belgium [1987] ECR 3029 and Case 262/85 Commission v Italy [1987] ECR 3073.

17 See my Opinion in Case C-157/89, cited above, paragraph

18 See inter alia the ludgmenl in Case 262/85 Commission v Italy [1987] ECR 3073, at paragraph 9.

19 See as to this my Opinion in Case C-157/89, cited above, at paragraph 11.

20 Paragraphs 12 and 13, set out in paragraph 12 above.

21 By average I mean here in the wide sense all statistical methods directed at a central trend, such as the modus (most frequently-occurring value, in this case most frequently-occurring date) and the median (middle date).

22 This is all the more serious in proportion to the wideness of the variations in the starting date; sec, in so far as concerns the geographical variability, the observation in footnote 6 concerning migratory birds other than waterfowl.

23 It is however for the national court to determine whether this is in fact so.

24 Case 262/85 Commission v Italy [1987] ECR 3073.

25 Judgment in Case 96/81 Commission v Netherlands [1982] ECR 1791, at paragraph 6; see also inter alia the ludgmcnl in Case C-62/89Commission v France [1990] ECR I-925, at paragraph 37.

26 In its reply the Commission had also slated that the closing dates had been erroneously chosen. This claim was however inadmissible because it had not been part of the administrative procedure; see paragraph 24 of the judgment.

27 Paragraph 23 of the judgment.

28 Paragraphs 21 to 27 of the judgment.

29 Paragraphs 25 and 26 of the judgment.

30 At the hearing it was observed by the Rassemblement des Opposants à la Chasse — without any contradiction by the other parties — that the Italian legislature had in the meantime implemented that judgment by a new law establishing a uniform closing date.

31 As observed by the Rassemblement des Opposants à la Chasse, it is also the only method which is preventive. Under Article 130r(2) of the EEC Treaty, action by the Community relating to the environment shail be based on the principle, among others, of preventive action.

32 See footnote 6 with reference to migratory birds other than waterfowl; see also footnote 21.

33 Opinion of Mr Advocate General Da Cruz Vilaça in Case 247/85 Commission v Belgium [1987] ECR 3029. at pp. 3055-3056.