Slide 1 Introduction Presentation purpose: to give an overview on main ECJ decisions in the field of birds directive to improve knowledge of

Slide 1 Introduction Presentation purpose: to give an overview on main ECJ decisions in the field of birds directive to improve knowledge of participants on how the ECJ interpreted some sensitive phrases and terms of the Directive so that... they can better understand the implications of ECJ cases on birds protection legislation on national jurisdiction (also complementation of birds directive presentation and case sessions in which some case decisions have already been mentioned) 1

Slide 2 content overview In this session selected cases will be highlighted on the proper transposition & application of ECJ decisions with respect to: Article 4 Article 5 (legal protection regime of SPA), (general system of protection of species), Article 7 and 8 (hunting, capture and killing of birds) and Article 9 (derogations) allowed under the Birds Directive Cases selected refer to both types of cases, preliminary rulings initiated by national courts (Article 267 TFEU) and infringement cases (Commission against MS, Article 258 TFEU). 2

Slide 3 Case C-3/96 is an infringement case between the Commission and the Netherlands. Article 4.1 Birds Directive: Member States shall classify in particular the most suitable territories in number and size as special protection areas for the conservation of these species. Commission s point of view: Each Member State has a specific obligation to designate sufficient SPAs to ensure the survival and reproduction of all the species of birds mentioned in Annex I which are on its territory. With respect to the Netherlands, IBA 89 ( Important Bird Areas identified by the NGO Bird Life) identifies, on the basis of the ornithological criteria used and explained in that study, 70 territories with a total area of 797 920 hectares suitable for classification as SPAs. The Commission submits that, by designating only 23 territories with a total area of 327 602 hectares as SPAs, the Netherlands has manifestly exceeded the limits of the discretion conferred on Member States by Article 4 of the Directive. The Netherlands Government has given no explanation of the scientific criteria on which its list of territories potentially classifiable as SPAs is based. 3

Slide 4 Dutch position (supported by German government) 1. The designation of SPAs is only one of the measures by which a Member State may perform its obligation under Article 4(1) of the Directive to take special conservation measures. Member States may also have recourse to other conservation measures to comply with that obligation. There can therefore be an infringement of that provision only if a Member State has not taken any special conservation measures at all. 2. Member States have a margin of discretion in implementing Article 4(1) of the Directive. With respect to the designation of SPAs, Article 4(1) merely requires designation of the most suitable territories. 3. IBA 89 contains only a list of sites which, according to scientific criteria, could potentially serve for the conservation of endangered species. However, the list is not included in the Directive and is not legally binding. The criterion applied by the Commission, namely that MS must designate as SPAs at least half in number and area of the territories listed by IBA 89, does not appear in the Directive. 4. When adopting the special conservation measures provided for in Article 4(1), Member States must take account not only of the specific factors mentioned in that provision but also of economic and recreational requirements, in accordance with Article 2. 4

Slide 5 ECJ Decision If Member States could escape the obligation to classify SPAs if they considered that other special conservation measures were sufficient to ensure survival and reproduction of the species mentioned in Annex I, the objective of creating a coherent network of SPAs, referred to in Article 4(3) of the Directive, might not be achieved. (para 58, slide text) The Member States' margin of discretion in choosing the most suitable territories for classification as SPAs does not concern the appropriateness of classifying as SPAs the territories which appear the most suitable according to ornithological criteria, but only the application of those criteria for identifying the most suitable territories for conservation of the species listed in Annex I to the Directive. (para 61) Consequently, Member States are obliged to classify as SPAs all the sites which, applying ornithological criteria, appear to be the most suitable for conservation of the species in question. (para 62) Thus where it appears that a Member State has classified as SPAs sites the number and total area of which are manifestly less than the number and total area of the sites considered to be the most suitable for conservation of the species in question, it will be possible to find that that Member State has failed to fulfill its obligation under Article 4(1) of the Directive. (para 63, slide text) 5

Slide 6 - ECJ decision (continuation) IBA 89 has proved to be the only document containing scientific evidence making it possible to assess whether the defendant State has fulfilled its obligation to classify as SPAs the most suitable territories in number and area for conservation of the protected species. The situation would be different if the Netherlands had produced scientific evidence in particular to show that the obligation in question could be fulfilled by classifying as SPAs territories whose number and total area were less than those resulting from IBA 89. (para 69) It follows that that inventory, although not legally binding on the Member States concerned, can, by reason of its acknowledged scientific value in the present case, be used by the Court as a basis of reference for assessing the extent to which the Netherlands has complied with its obligation to classify SPAs. (para 70, side text) it must be pointed out that the economic requirements mentioned in Article 2 of the Directive may not be taken into account when selecting an SPA and defining its boundaries (para 59) By classifying as SPA territories whose number and total area are clearly smaller than the number and total area of the territories suitable for classification as SPAs within the meaning of Article 4(1) the Netherlands has failed to fulfill its obligations under the directive (para 73) 6

Slide 7 Case C-347/98 (Basses Corbières Site) Case is an infringement case between the EU-Commission and France. The Commission charges the French Republic with: 1. not having classified the Basses Corbières site as an SPA; 2. not having taken sufficient special conservation measures concerning the habitat of the species referred to in Annex I to the birds directive and of migratory species which frequent that site; The area designated by French authorities as an important area for the conservation of wild birds (zone importante pour la conservation des oiseaux sauvages; 'ZICO ) amounts to 47.400 hectares. (para 11) As regards the special conservation measures required by Article 4(1) of the birds directive, the Commission maintains that the measures adopted by the French authorities for the Basses Corbières site are insufficient. Three existing decrees do not ensure sufficient and complete protection of all the bird species required to be protected in that site by the birds directive, either in relation to the protection regime established or in relation to its geographical extent. (para 18, slide text) The French Government argues that, under Article 4 of the birds directive, it is for the Government to classify as SPAs the territories which appear to it to be the most suitable in number and size for the conservation of birds. The French authorities were therefore not required to classify the whole of the area listed in the national inventory of ZICOs as SPAs. (para 12) Those three decrees for the protection of the biotope ensure complete protection of the bird species present in the areas concerned. (para 19) 7

Slide 8 ECJ on Basses Corbières Site Case ECJ: There is nothing in the documents before the Court to show that the regime established by the three decrees for protecting the biotope is insufficient in relation to the conservation requirements of any of the bird species present in the areas covered by those decrees. (para 21, slide text), The complaint that the protection regime arising from the special conservation measures adopted by the French authorities is insufficient must therefore be rejected. (para 22) BUT: The IBA, although not legally binding on the Member States concerned, contains scientific evidence making it possible to assess whether a Member State has complied with its obligation to classify as SPAs the most suitable territories in number and size for conservation of the protected species. It follows from the general scheme of Article 4 of the birds directive that, where a given area fulfils the criteria for classification as an SPA, it must be made the subject of special conservation measures capable of ensuring, in particular, the survival and reproduction of the bird species mentioned in Annex I. (para 25/26, slide text) Since a considerable part of the area to be protected does not benefit from a special conservation regime, the special conservation measures taken by the French authorities are insufficient in their geographical extent. (para 29). 8

Slide 9 ECJ on Basses Corbières Site Case By not classifying any part of the Basses Corbières site SPA and by not adopting special conservation measures for that site sufficient in their geographical extent, the French Republic has failed to fulfill its obligations under Article 4(1). Case C-293/07 EU Commission versus Greece By failing to take all the measures necessary to establish and apply a coherent, specific and integrated legal regime capable of ensuring sustainable management and effective protection of areas designated as SPAs, Greece has failed to fulfill its obligations under Article 4(1) and (2). The infringement of the directive consists in the lack of protection for SPAs and also the existence of activities which may damage their integrity and have significant negative consequences for the objectives of conservation of SPAs and of the species for which the areas have been defined. Commission action is based on a large number of complaints received. 9

Slide 10 Discretionary power to modify extent of SPA Case C-191/05, EU-Commission Portugal The ornithological criteria laid down in paragraphs (1) and (2) of Article 4 are to guide the MS in designating and defining the boundaries of SPAs. Accordingly, a Member State may not reduce the surface area of an SPA or alter its boundaries unless the areas excluded from the SPA are no longer the most suitable territories for the conservation of species of wild birds within the meaning of Article 4(1). There is a lack of scientific basis to alter the boundaries. Only if the MS can show that a deterioration in quality in the meantime is due to objective circumstances over which it has no influence, for example volcanic eruptions, may it justify the reduction in the extent of an SPA. Case C-57/89 EU-Commission-Germany (Leybucht) Germany intends to dyke building operations in the Leybucht. Commission position: Both, the construction work in the Leybucht and its results entail deterioration in the living conditions of protected birds and the loss of land areas of considerable ecological importance. German position: The sole purpose of the operations is to secure the safety of the dyke. During the planning stage of the project at issue the competent authorities took account of all bird conservation requirements and balanced them against the requirements of coastal protection. The new line of the dyke and the temporary disturbances caused by the works constitute the smallest possible interference for bird life in the Leybucht. ECJ: The boundaries of the SPA are constituted by the present line of the dyke. The displacement of the dyke towards the sea as part of the coastal defence project thus entails a reduction in the protected area. (para 17) Although the MS do have a certain discretion with regard to the choice of the territories which are most suitable for classification as SPAs pursuant to Article 4(1), they do not have the same discretion under Article 4(4) in modifying or reducing the extent of the areas, since they have themselves acknowledged in their declarations that those areas contain the most suitable environments for the species listed in Annex I. If that were not so, the MS could unilaterally escape from the obligations imposed on them by Article 4(4) with regard to SPAs. (para 20) The power of the MS to reduce the extent of a special protection area can be justified only on exceptional grounds. The interests referred to in Article 2 of the directive, namely economic & recreational requirements, do not enter into consideration. (para 21 f.) The danger of flooding and the protection of the coast constitute sufficiently serious reasons to justify the dyke works and the strengthening of coastal structures as long as those measures are confined to a strict minimum and involve only the smallest possible reduction of the SPA. (para 22) The disturbance arising from the construction work itself does not exceed what is necessary to carry it out. (para 27) The application of the Commission was dismissed. 10

Slide 11 Case C-96/98 (Poitevin Marsh) Commission: Only one-third of the area of the Poitevin Marsh which was of ornithological interest had been classified as SPA although the entire area featuring in the IBA inventory should be classified as an SPA. France intends to extend the designation as SPA but lost the case insofar: ECJ: by failing, within the prescribed period, to classify a sufficient area in the Poitevin Marsh as special protection areas, France has failed to fulfil its obligations) But more relevant here is this: France took systematic drainage and intensive cultivation measures in the area (though some happened before Birds Directive entered into force) and a number of areas suitable for classification as SPAs had been destroyed. ECJ: The first sentence of Article 4(4) requires Member States to take appropriate steps to avoid, inter alia, deterioration of habitats in the areas which are most suitable for the conservation of wild birds, even where the areas in question have not been classified as SPAs, provided that they should have been so classified. (para 41) France did not take the measures necessary to avoid deterioration of some, but not all, areas in the Poitevin Marsh which should have been classified as SPAs, and thereby failed to meet its obligations (para 46) 11

Slide 12 General system of protection (Article 5) Case C-282/85, EU-Commission France EU-Commission: France has only provided for the protection of nests and eggs during the close season France: Protected species of birds in question do not nest during the hunting season and there would therefore be no real purpose in protecting their nests and eggs throughout the year. The possibility of destroying nests is justified by the threat they represent to mussel farming, other species of sea birds and air safety. ECJ: It must be stressed that the prohibitions set out in Article 5 (B) and (C) must apply without any limitation in time. An uninterrupted protection of the birds habitats is necessary since many species re-use each year nests built in earlier years. Case C-412/85, EU-Commission-France The protection provisions of the German Bundesnaturschutzgesetz (nature protection law) do not apply where acts concerned take place in the course of the normal use of the land for agricultural, forestry or fishing purposes. Commission: There is no reference in the German legislation to the fact that that a derogation may be granted only where there is no other satisfactory solution or to one of the reasons set out in Article 9(1). (para 10) Germany: This is no derogation. The activities defined by the German lawsuch as the normal use of land can never be regarded as constituting the deliberate failure to protect birds because actions performed with the intention of killing, capturing disturbing keeping or selling birds cannot be described as part of normal agricultural, forestry or fishing activities. (para 11) ECJ: The reference to a particular use of the land does not provide a precise indication of the extent to which damage to the environment is permitted. Since the German legislation does not define the concept of normal use, unintentional damage to the life and habitat of birds is not excluded from the provision of the 12

German law in so far as damages is necessary in the normal use of the land. (para 15) 12

Slide 14 Article 7 - Hunting, capture or killing of birds Case C-247/85 (same case as above): Belgian view: There is no provision in the directive requiring certain species of birds to be classified in a category of birds which may not be hunted. ECJ: National legislation must guarantee that the species of birds not listed in Annex II may not be hunted (converse argument to content of Article 7.1). According to Belgian law the competent authorities still have the power to authorize the hunting of species which are not listed in Annex II. This is not in compliance with Article 7.1. (para 13-16) Case C-262/85 (EU-Commission/Italy): ECJ: Article 7 authorizes MS to allow hunting of the species listed I Annex II under certain conditions and within certain limits. It is clear from the general scheme of protection provided for in the directive that national legislation may not extend the list contained in Annex II indicating the bird species which may be hunted. (para 12) 13

Slide 15 Preliminary ruling as concerns Article 7.4 Case C-435/92, Court of Nantes asked: Should the closing date for the hunting of migratory birds be fixed as the date of the commencement of pre-mating migration or the varying date of commencement of migration? May authorities set different closing dates for hunting seasons by reference to species? ECJ answer: Any hunting activity is liable to disturb wildlife and that it may in many cases affect the state of conservation of the species concerned. The regular elimination of individuals keeps the hunted populations in a permanent state of alert which has disastrous consequences for numerous aspects of their living conditions. Those consequences are particularly serious for groups of birds which, during the season of migration and wintering, tend to gather together in flocks and rest in areas which are often very confined or even enclosed. Disturbances caused by hunting force these animals to devote most of their energy to moving to other spots and to fleeing, to the detriment of time spent feeding and 14

resting for the purpose of the migration. 14

Slide 16 Continuation Article 7.4, Case C-435/92 This is why MS are to see in particular that the species to which hunting laws apply are not hunted during the rearing season or the various stages of reproduction or as concerns migratory birds during their return to the rearing grounds. (para 6) ECJ answer question 1: The closing date for the hunting of migratory birds must be fixed in accordance with a method which guarantees complete protection of those species during the period of pre-mating migration. Methods whose object or effect is to allow a certain percentage of the birds of a species to escape such protection do not comply with that provision. ECJ answer question 2: Fixing one single date for all the species concerned for the closing of hunting, which is equivalent to that fixed for the species which is the earliest to migrate, guarantees in principle that the objective laid down in the third sentence of Article 7(4) is realized. National authorities are not empowered by the Directive to fix closing dates for the hunting season which vary according to the species of bird, unless the Member State concerned can adduce evidence, based on scientific and technical data relevant to each individual case, that staggering the closing dates for hunting does not impede the complete protection of the species of bird liable to be affected by such staggering. 15

Slide 17 Article 9 - Derogations Article 9 authorizes MS to derogate from provisions concerning hunting under three conditions: There is no other satisfactory solution Derogations must be based on at least one of the reasons listed in Article 9.1 a-c Derogation must comply with precise formal conditions set in Article 9.2 Member States do not need to consult the Commission before applying derogations but are obliged to report all derogations to the European Commission in annual derogation reports (Article 9.3). 16

Slide 13 Case C-247/85, EU Commission Belgium EU Commission: Belgian Decree allows birds nests built against houses and adjoining buildings to be disturbed, removed or destroyed in contradiction to Article 5 (B) Belgium: Provision in question is justified by reasons of public health and safety within the meaning of the first indent of Article 9.1 (A). The presence of nests in chimneys and pipes has led on many occasions to fires and floods and they have also caused problems of hygiene. ECJ: The Belgian rules provide for a derogation which is not sufficiently delimited as regards the criteria and conditions of Article 9.1. The derogation is not limited to situations in which there is no other satisfactory solution than the destruction or removal of nests. Not all nests built against houses always represent a danger to health. The removal or destruction of nests is necessary only in specific cases in which the higher-ranking interests of public health and security must override the protection of birds and their habitats. The derogation also does not comply with the formal requirements of Article 9.2 because it does not specify the conditions of risk and the circumstances of time and place in which the derogations may be granted. (Para 27-28) 17

Slide 18 Derogations, questions Case C-182/02, Conseil d Etat asked: 1 Does Article 9(1)(c) permit a MS to derogate from the opening and closing dates for hunting which follow from consideration of the objectives specified in Article 7(4) thereof? 2 If so, what are the criteria which make it possible to establish the limits of that derogation? 18

Slide 19 Derogations, answers Answer 1 of ECJ: The hunting of wild birds for recreational purposes during the periods mentioned in Article 7(4) of the Directive may constitute a judicious use authorised by Article 9(1)(c) of that directive, as do the capture and sale of wild birds even outside the hunting season with a view to keeping them for use as live decoys or to using them for recreational purposes in fairs and markets (para 11) The answer to the first question must therefore be that Article 9(1)(c) of the Directive permits a MS to derogate from the opening and closing dates for hunting which follow from consideration of the objectives set out in Article 7(4) of the Directive. Answer 2 of ECJ: The third of the conditions of Article 9 cannot be satisfied if a hunting derogation does not ensure the maintenance of the population of the species concerned at a satisfactory level. If that condition is not fulfilled, the use of birds for recreational hunting cannot, in any event, be considered judicious. Besides, hunting must be carried out under strictly supervised conditions and on a selective basis and shall only apply to certain birds in small numbers. The condition that there is no other satisfactory solution would not be met, inter alia, if the sole purpose of the derogation authorising hunting were to extend the hunting periods for certain species of birds in territories which they already frequent during the hunting periods fixed in accordance with Article 7 of the Directive; 19

Slide 20 Derogations Case C-60/05, questions C-60/05 WWF Italia (Preliminary Ruling) Question 1: What means the condition in Article 9(1)(c) that any hunting derogations must be restricted to small numbers of birds. Question 2: Does it mean that there is an obligation to set up consultation between the entities within a State which are responsible for granting authorisations for hunting derogations so that allocation of the number of birds which may be hunted for all those entities can be fixed in a binding manner? 20

Slide 21 Derogations Case C-60/05 ECJ answer 1: Article 9(1)(c) of the Directive requires the MS, irrespective of the internal allocation of powers prescribed by the national legal system, upon adoption of measures implementing that provision to ensure that, in all cases of application of the derogation provided for therein and for all the protected species, authorised hunting does not exceed a ceiling consistent with the restriction on that hunting to small numbers imposed by that provision, and that ceiling must be determined on the basis of strict scientific data. (para 29) The authorities of the MS must take account of various criteria which relate to geographic, climatic, environmental and biological factors and, in particular, to the situation regarding the species reproduction and total annual mortality rate owing to natural causes. As to those criteria small numbers are any sample of less than 1% of the total annual mortality rate of the population in question (average value) based on the work of the ORNIS Committee in order to asses whether a derogation granted under Article 9(1)(c) complies with that provision. (para 26) 21

Slide 22 Derogations Case C-60/05 ECJ answer 2: Where the application of Article 9(1)(c) is delegated to entities within a State, the applicable legislative and regulatory framework must ensure that the amount of hunting of birds which may be authorised by those entities remains, for the entire national territory, within the limit of small numbers imposed by that provision. Upon implementation of Article 9(1)(c) the MS are required to ensure that, irrespective of the number and identity of the authorities within their territory responsible for applying that provision, the amount of authorised hunting derogations in respect of each protected species by each of those authorities does not exceed the ceiling compatible with the restriction on that hunting to small numbers, fixed for that species for the entire national territory. (para 40-41) Administrative procedures provided for must be organised in such a way that both the decisions of the competent authorities authorising hunting derogations and the manner in which those decisions are applied are subject to effective control exercised in a timely manner. (para 47) 22

Slide 23 Derogations 76/08 (EU-Commission / Malta) Facts: Quail and turtle dove, both appear in Annex II/2 (may be hunted) and fall under article 7.4 Malta wants to continue spring hunting of these birds additional to autumn hunting. Extract from birds directive: Article 7.4: In case of migratory species MS shall see in particular that the species to which hunting regulations apply are not hunted during their period of reproduction or during their return to the rearing grounds. Article 9.1: MS may derogate from the provisions of Article 7 where there is no other satisfactory solution, for the following reasons: c) To permit under strictly supervised conditions and on a selective basis, the capture, keeping or other judicious use of certain birds in small numbers. 23

Slide 24 Derogations, Malta Case C-76/08, positions EU-Commission: Measures taken by Malta fall outside the scope of the derogation in Article 9 (1) because the Maltese authorities have failed to show that there is no satisfactory solution other than spring hunting of the species concerned. Sole purpose of request is to extend the hunting seasons for species of birds. If hunting is possible in autumn, the condition that there be no other satisfactory solution is not met. State of conservation of turtle doves and quails is unfavourable and birds are not killed in small numbers - compared with the total annual mortality rate. Species have not been hunted in small numbers (compared with the total annual mortality rate) 24

Slide 25 Malta: Hunting of the species concerned is possible in autumn, but these birds would appear not to be present then in sufficient numbers. In 2005, 15 239 quails were taken in the spring, as against only 5 109 in the autumn. As regards turtle doves, 31 493 were taken in the spring, representing 2.6 turtle doves per hunter, as against only 4 990 in the autumn, representing 0.41 turtle doves per hunter. Total prohibition on spring hunting would in practice lead to entire prohibition of hunting of these species. Conservation status of quails and turtle doves is not at an unfavourable level, in IUCN report they are classified in least concern category. The lack of any other satisfactory solution does not refer to the lack of any alternative solution, but to the lack of any acceptable and sufficiently appropriate solution in relation to the objective pursued, that is to say, in the present case, permitting the capture and a judicious exploitation of the birds in small quantities, while maintaining a well-established tradition. ECJ interim decision: Malta did not explain clearly why and with regard to what needs the numbers taken during autumn hunting had to be considered insufficient. Malta has failed to fulfil its obligations under Article 7. 25

Slide 26 ECJ decision: Derogations, Malta Case C-76/08 No need for derogation to extend hunting seasons when species concerned are also present in autumn even if in considerably smaller numbers. That alone, though, does not mean that there is another satisfactory solution. (para 50-55) The Community legislature, by using the expression other satisfactory solution, did not intend to prevent use of the derogation laid down in Article 9(1)(c) of the Directive where any opportunity whatsoever exists of hunting during the open seasons authorised under Article 7 of the Directive, but sought to permit derogations from that provision, only so far as necessary, where hunting opportunities during those periods, in the present case in the autumn, are so limited as to upset the balance sought by the Directive between the protection of species and certain leisure activities. The derogation of which a Member State intends to make use must be proportionate to the needs which justify it. Here: No other satisfactory solution, as hunters in autumns can only capture an inconsiderable number of birds (para 56-60). Also, species in question are not threatened according to IUCN list, BUT: The prolongation of the hunting season for those two migratory species, which results in a mortality rate three times higher (around 15, 000 birds killed) for quails and eight times higher (around 32, 000 birds killed) for turtle doves than for the autumn hunting season, does not constitute an adequate solution that is strictly proportionate to the Directive s objective of conservation of the species. Hence: Interpretation of Article 9 (1) in the light of proportionality leads to result that Malta has failed to fulfill its obligations under the birds directive. 26