61985J0247

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ACTS OF THE INSTITUTIONS - DIRECTIVES - IMPLEMENTATION BY THE MEMBER STATES - TRANSPOSITION OF A DIRECTIVE WITHOUT LEGISLATIVE ACTION - CONDITIONS - EXISTENCE OF A GENERAL LEGAL CONTEXT ENSURING THE FULL APPLICATION OF THE DIRECTIVE

( EEC TREATY, ART . 189, THIRD PARAGRAPH )

ENVIRONMENT - CONSERVATION OF WILD BIRDS - MANAGEMENT OF A COMMON HERITAGE - DIRECTIVE 79/409/EEC - NECESSITY FOR FAITHFUL TRANSPOSITION BY THE MEMBER STATES

( COUNCIL DIRECTIVE 79/409 )

THE TRANSPOSITION OF A DIRECTIVE INTO NATIONAL LAW DOES NOT NECESSARILY REQUIRE THE PROVISIONS OF THE DIRECTIVE TO BE ENACTED IN PRECISELY THE SAME WORDS IN A SPECIFIC, EXPRESS LEGAL PROVISION OF NATIONAL LAW; A GENERAL LEGAL CONTEXT MAY BE SUFFICIENT IF IT ACTUALLY ENSURES THE FULL APPLICATION OF THE DIRECTIVE IN A SUFFICIENTLY CLEAR AND PRECISE MANNER .

HOWEVER, A FAITHFUL TRANSPOSITION BECOMES PARTICULARLY IMPORTANT IN A CASE SUCH AS THE TRANSPOSITION OF DIRECTIVE 79/409 CONCERNING THE CONSERVATION OF WILD BIRDS IN WHICH THE MANAGEMENT OF THE COMMON HERITAGE IS ENTRUSTED TO THE MEMBER STATES IN THEIR RESPECTIVE TERRITORIES .

IN CASE 247/85

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY THOMAS VAN RIJN, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, ALSO A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,

APPLICANT,

V

KINGDOM OF BELGIUM, REPRESENTED BY ROBERT HOEBAER, DIRECTOR AT THE MINISTRY OF FOREIGN AFFAIRS, FOREIGN TRADE AND DEVELOPMENT COOPERATION, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE BELGIAN EMBASSY, 4 RUE DES GIRONDINS,

DEFENDANT,

APPLICATION FOR A DECLARATION THAT, BY NOT ADOPTING WITHIN THE PRESCRIBED PERIOD ALL THE LAWS, REGULATIONS AND ADMINISTRATIVE PROVISIONS NEEDED TO COMPLY WITH COUNCIL DIRECTIVE 79/409/EEC OF 2 APRIL 1979 ON THE CONSERVATION OF WILD BIRDS, THE KINGDOM OF BELGIUM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY,

THE COURT

COMPOSED OF : LORD MACKENZIE STUART, PRESIDENT, C . KAKOURIS, T.*F . O' HIGGINS AND F . SCHOCKWEILER ( PRESIDENTS OF CHAMBERS ) G . BOSCO, T . KOOPMANS, K . BAHLMANN, R . JOLIET AND G.*C . RODRIGUEZ IGLESIAS, JUDGES,

ADVOCATE GENERAL : J.*L . DA CRUZ VILACA

REGISTRAR : B . PASTOR, ADMINISTRATOR

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 17 SEPTEMBER 1986 DURING WHICH THE COMMISSION WAS REPRESENTED BY THOMAS VAN RIJN, ACTING AS AGENT, AND THE KINGDOM OF BELGIUM WAS REPRESENTED BY J . DEVADDER, ASSISTANT ADVISOR IN THE LEGAL SERVICE OF THE MINISTRY OF FOREIGN AFFAIRS, FOREIGN TRADE AND DEVELOPMENT COOPERATION,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 2 DECEMBER 1986,

GIVES THE FOLLOWING

JUDGMENT

1 BY AN APPLICATION LODGED WITH THE COURT REGISTRY ON 5 AUGUST 1985, THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT, BY NOT ADOPTING WITHIN THE PRESCRIBED PERIOD ALL THE LAWS, REGULATIONS AND ADMINISTRATIVE PROVISIONS NEEDED TO COMPLY WITH COUNCIL DIRECTIVE 79/409/EEC OF 2 APRIL 1979 ON THE CONSERVATION OF WILD BIRDS ( OFFICIAL JOURNAL 1979, L 103, P . 1 ), HEREINAFTER REFERRED TO AS "THE DIRECTIVE "), THE KINGDOM OF BELGIUM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY .

2 ARTICLE 18 OF THE DIRECTIVE PROVIDES THAT THE MEMBER STATES MUST IMPLEMENT THE LAWS, REGULATIONS AND ADMINISTRATIVE PROVISIONS NEEDED TO COMPLY WITH THE DIRECTIVE WITHIN TWO YEARS FROM ITS NOTIFICATION . SINCE THE DIRECTIVE HAD BEEN NOTIFIED ON 6 APRIL 1979, THAT PERIOD EXPIRED ON 6 APRIL 1981 .

3 AFTER EXAMINING THE PROVISIONS OF THE RELEVANT BELGIAN LEGISLATION AND DECIDING THAT IT WAS NOT ENTIRELY IN CONFORMITY WITH THE DIRECTIVE, THE COMMISSION COMMENCED THE PROCEDURE PROVIDED FOR IN ARTICLE 169 OF THE TREATY . AFTER GIVING FORMAL NOTICE TO THE KINGDOM OF BELGIUM TO SUBMIT ITS OBSERVATIONS, THE COMMISSION DELIVERED A REASONED OPINION ON 20 FEBRUARY 1985 . SINCE THERE WAS NO RESPONSE TO THE REASONED OPINION, THE COMMISSION BROUGHT THIS ACTION, SUBMITTING EIGHT COMPLAINTS AGAINST THE LEGISLATION IN FORCE IN BELGIUM .

4 IN BELGIUM, HUNTING IS REGULATED BY THE LAW OF 28 FEBRUARY 1882 ( MONITEUR BELGE OF 3 MARCH 1882, HEREINAFTER REFERRED TO AS "THE LAW "). THE LAW HAS BEEN AMENDED ON SEVERAL TIMES . IT HAS ALSO BEEN SUPPLEMENTED BY THE ROYAL DECREE OF 20 JULY 1972 ( MONITEUR BELGE OF 1 AUGUST 1972 ). SINCE THE ADOPTION OF THE SPECIAL LAW ON INSTITUTIONAL REFORM OF 8 AUGUST 1980 ( MONITEUR BELGE OF 15 AUGUST 1980 ), POWERS IN HUNTING MATTERS HAVE BEEN CONFERRED ON THE REGIONS WHICH MAY REPEAL, SUPPLEMENT, AMEND OR REPLACE THE STATUTORY PROVISIONS AND REGULATIONS IN FORCE IN THIS FIELD . UNDER THE TRANSITIONAL RULES PROVIDED FOR IN THAT LAW, THE POWERS GRANTED TO THE REGIONAL EXECUTIVES WERE EXERCISED BY THE KING . ONLY THE FLEMISH REGIONAL EXECUTIVE PROPOSED TO THE KING THE ADOPTION OF A ROYAL DECREE AMENDING THE ROYAL DECREE OF 20 JULY 1972 . THIS BECAME THE ROYAL DECREE OF 9 SEPTEMBER 1981 ( MONITEUR BELGE OF 31 OCTOBER 1981 ), WHICH APPLIES TO THE FLEMISH REGION ONLY . THE ROYAL DECREE OF 1972 THEREFORE CONTINUES TO APPLY ONLY TO THE WALLOON AND BRUSSELS REGIONS .

5 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR THE BACKGROUND TO THE CASE, THE PROVISIONS OF THE BELGIAN LEGISLATION IN QUESTION, THE COURSE OF THE PROCEDURE AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

THE GENERAL OBLIGATIONS OF MEMBER STATES CONTAINED IN THE DIRECTIVE

6 BEFORE EXAMINING THE VARIOUS COMPLAINTS SUBMITTED BY THE COMMISSION, THE PROVISIONS OF AND THE OBLIGATIONS ARISING UNDER THE DIRECTIVE SHOULD BE CLARIFIED IN SO FAR AS THEY ARE RELEVANT TO THE PRESENT CASE . IN THIS REGARD, IT MUST BE STATED AT THE OUTSET THAT, ACCORDING TO ARTICLE 1, THE DIRECTIVE RELATES TO THE CONSERVATION OF ALL SPECIES OF NATURALLY OCCURRING BIRDS IN THE WILD STATE IN THE EUROPEAN TERRITORY OF THE MEMBER STATES AND COVERS THE PROTECTION, MANAGEMENT AND CONTROL OF THOSE SPECIES AND LAYS DOWN RULES FOR THEIR EXPLOITATION . THE DIRECTIVE IS BASED ON THE CONSIDERATION THAT EFFECTIVE BIRD PROTECTION IS TYPICALLY A TRANSFRONTIER ENVIRONMENT PROBLEM ENTAILING COMMON RESPONSIBILITIES FOR THE MEMBER STATES ( THIRD RECITAL IN THE PREAMBLE ).

7 IN ORDER TO INSTITUTE AN EFFECTIVE SYSTEM OF PROTECTION THE DIRECTIVE LAYS DOWN THREE TYPES OF PROVISIONS . FIRST, IT PROVIDES FOR GENERAL PROHIBITIONS AGAINST THE KILLING, CAPTURING, DISTURBING, KEEPING AND MARKETING OF BIRDS AND ALSO AGAINST THE DESTRUCTION, DAMAGING OR REMOVAL OF THEIR NESTS AND EGGS ( ARTICLE 5 AND ARTICLE 6 ( 1 )*). SECONDLY, IT PROVIDES FOR DEROGATIONS FROM THOSE GENERAL PROHIBITIONS FOR THE BIRD SPECIES LISTED IN THE ANNEXES TO THE DIRECTIVE . THUS, PROVIDED THAT CERTAIN CONDITIONS AND LIMITS ARE LAID DOWN AND RESPECTED, MEMBER STATES MAY AUTHORIZE THE MARKETING OF THE SPECIES LISTED IN ANNEX III AND THE HUNTING OF THE SPECIES LISTED IN ANNEX II TO THE DIRECTIVE ( ARTICLE 6 ( 2 ), ( 3 ) AND ( 4 ) AND ARTICLE 7 ). IT FOLLOWS THAT, FOR THE BIRD SPECIES WHICH ARE NOT LISTED IN THOSE ANNEXES, OR IF THE CONDITIONS AND LIMITS PROVIDED FOR IN THE ABOVEMENTIONED ARTICLES ARE NOT OBSERVED, THE GENERAL PROHIBITIONS REMAIN APPLICABLE .

THIRDLY, ARTICLE 9 OF THE DIRECTIVE AUTHORIZES THE MEMBER STATES TO DEROGATE FROM THE GENERAL PROHIBITIONS AND FROM THE PROVISIONS CONCERNING MARKETING AND HUNTING . HOWEVER, THIS POSSIBILITY IS SUBJECT TO THREE CONDITIONS : FIRST, THE MEMBER STATE MUST RESTRICT THE DEROGATION TO CASES IN WHICH THERE IS NO OTHER SATISFACTORY SOLUTION; SECONDLY, THE DEROGATION MUST BE BASED ON AT LEAST ONE OF THE REASONS LISTED EXHAUSTIVELY IN ARTICLE 9 ( 1 ) ( A ), ( B ) AND ( C ); THIRDLY, THE DEROGATION MUST COMPLY WITH THE PRECISE FORMAL CONDITIONS SET OUT IN ARTICLE 9(2 ), WHICH ARE INTENDED TO LIMIT DEROGATIONS TO WHAT IS STRICTLY NECESSARY AND TO ENABLE THE COMMISSION TO SUPERVISE THEM . ALTHOUGH ARTICLE 9 THEREFORE AUTHORIZES WIDE DEROGATIONS FROM THE GENERAL SYSTEM OF PROTECTION, IT MUST BE APPLIED APPROPRIATELY IN ORDER TO DEAL WITH PRECISE REQUIREMENTS AND SPECIFIC SITUATIONS .

8 IN THIS CONTEXT IT IS NECESSARY TO REFER TO ARTICLE 2 OF THE DIRECTIVE, WHICH REQUIRES THE MEMBER STATES TO TAKE THE REQUISITE MEASURES TO MAINTAIN THE POPULATION OF ALL BIRD SPECIES AT A LEVEL, OR TO ADAPT IT TO A LEVEL, WHICH CORRESPONDS IN PARTICULAR TO ECOLOGICAL, SCIENTIFIC AND CULTURAL REQUIREMENTS, WHILE TAKING ACCOUNT OF ECONOMIC AND RECREATIONAL REQUIREMENTS AND FROM WHICH IT IS THEREFORE CLEAR THAT THE PROTECTION OF BIRDS MUST BE BALANCED AGAINST OTHER REQUIREMENTS, SUCH AS THOSE OF AN ECONOMIC NATURE . THEREFORE, ALTHOUGH ARTICLE 2 DOES NOT CONSTITUTE AN AUTONOMOUS DEROGATION FROM THE GENERAL SYSTEM OF PROTECTION, IT NONE THE LESS SHOWS THAT THE DIRECTIVE TAKES INTO CONSIDERATION, ON THE ONE HAND, THE NECESSITY FOR EFFECTIVE PROTECTION OF BIRDS AND, ON THE OTHER HAND, THE REQUIREMENTS OF PUBLIC HEALTH AND SAFETY, THE ECONOMY, ECOLOGY, SCIENCE, FARMING AND RECREATION .

9 AS REGARDS THE TRANSPOSITION OF THE DIRECTIVE INTO NATIONAL LAW, IT MUST BE OBSERVED THAT THIS DOES NOT NECESSARILY REQUIRE THE PROVISIONS OF THE DIRECTIVE TO BE ENACTED IN PRECISELY THE SAME WORDS IN A SPECIFIC EXPRESS LEGAL PROVISION OF NATIONAL LAW; A GENERAL LEGAL CONTEXT MAY BE SUFFICIENT IF IT ACTUALLY ENSURES THE FULL APPLICATION OF THE DIRECTIVE IN A SUFFICIENTLY CLEAR AND PRECISE MANNER ( SEE THE JUDGMENT OF 23 MAY 1985 IN CASE 29/84 COMMISSION V FEDERAL REPUBLIC OF GERMANY (( 1985 )) ECR 1667 ). HOWEVER, A FAITHFUL TRANSPOSITION BECOMES PARTICULARLY IMPORTANT IN A CASE SUCH AS THIS IN WHICH THE MANAGEMENT OF THE COMMON HERITAGE IS ENTRUSTED TO THE MEMBER STATES IN THEIR RESPECTIVE TERRITORIES .

FIRST COMPLAINT : THE LIST OF BIRDS WHICH MAY BE HUNTED

10 THE COMMISSION POINTS OUT THAT, UNDER ARTICLE 1 BIS ( B ), ( C ) AND ( D ) OF THE LAW, CERTAIN SPECIES OF WILD BIRDS MAY IN PRINCIPLE BE HUNTED, ALTHOUGH THOSE BIRDS ARE NOT LISTED IN ANNEX II TO THE DIRECTIVE AND CANNOT THEREFORE BE HUNTED UNDER ARTICLE 7 OF THE DIRECTIVE .

11 AS REGARDS THE PRACTICAL APPLICATION OF THIS PROVISION, THE COMMISSION OBSERVES THAT, UNDER SEVERAL MINISTERIAL ORDERS, THE HUNTING OF BLACKBIRDS, JACKDAWS AND MAGPIES WHICH ARE NOT LISTED IN ANNEX II, WAS AUTHORIZED IN THE YEARS 1981 TO 1984 .

12 AT THE HEARING, THE COMMISSION CONCEDED THAT, AS REGARDS THE FLEMISH REGION, THE ORDER OF 27 JUNE 1985 AMENDING THE LAW ON HUNTING OF 28 FEBRUARY 1882 ( MONITEUR BELGE OF 27 AUGUST 1985 ) DID COMPLY WITH THE REQUIREMENTS OF THE DIRECTIVE . HOWEVER, THAT ORDER WAS ADOPTED AFTER THE PRESENT CASE HAD BEEN BROUGHT BEFORE THE COURT .

13 IN THE VIEW OF THE BELGIAN GOVERNMENT, 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 . THE FACT THAT CERTAIN BIRDS NOT LISTED IN ANNEX II HAVE BEEN CLASSIFIED AS "GIBIER" ( GAME ) UNDER THE BELGIAN RULES IS NOT AN INFRINGEMENT OF THE DIRECTIVE . ONLY AN EXPRESS DECISION OF THE COMPETENT AUTHORITY COULD AUTHORIZE THE HUNTING OF THE SPECIES CONCERNED SO THAT ONLY SUCH A DECISION COULD COME INTO CONFLICT WITH THE PROVISIONS OF ARTICLE 7 OF THE DIRECTIVE .

14 IN THIS REGARD, IT MUST BE STATED THAT THE NATIONAL LEGISLATION MUST GUARANTEE THAT THE SPECIES OF BIRDS NOT LISTED IN ANNEX II MAY NOT BE HUNTED . UNDER ARTICLE 7 OF THE DIRECTIVE, IT IS PERMITTED ONLY TO PROVIDE THAT, OWING TO THEIR POPULATION LEVEL, GEOGRAPHICAL DISTRIBUTION AND REPRODUCTIVE RATE THROUGHOUT THE COMMUNITY, THE SPECIES LISTED IN ANNEX II TO THE DIRECTIVE MAY BE HUNTED .

15 IN ARTICLE 1 BIS OF THE LAW SPECIES OF BIRDS NOT LISTED IN ANNEX II TO THE DIRECTIVE ARE CLASSIFIED 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 LISTED IN ANNEX II TO THE DIRECTIVE BUT WHICH ARE LISTED IN ARTICLE 1 BIS ( B ), ( C ) AND ( D ) OF THE LAW .

16 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 .

17 THE FIRST COMPLAINT MUST THEREFORE BE UPHELD .

SECOND COMPLAINT : THE LIST OF PROTECTED BIRDS

18 THE COMMISSION POINTS OUT THAT, ACCORDING TO ARTICLE 1 OF THE ROYAL DECREES, THEY ARE ONLY CONCERNED WITH THE PROTECTION OF BIRDS LIVING IN THE WILD STATE IN THE BENELUX COUNTRIES, WHEREAS THE PROTECTION SHOULD BE EXTENDED TO ALL SPECIES OF BIRDS LIVING NATURALLY IN THE WILD STATE IN THE EUROPEAN TERRITORY OF MEMBER STATES IN ACCORDANCE WITH ARTICLE 1 ( 1 ) OF THE DIRECTIVE .

19 AT THE HEARING, THE COMMISSION ADMITTED THAT ITS COMPLAINT NO LONGER CONCERNED THE FLEMISH REGION SINCE THE ORDER OF THE FLEMISH EXECUTIVE OF 20 NOVEMBER 1985 ( MONITEUR BELGE OF 31 DECEMBER 1985 ) HAD HARMONIZED ARTICLE 1 OF THE ROYAL DECREE OF 9 SEPTEMBER 1981 WITH THE DIRECTIVE .

20 IN REPLY THE BELGIAN GOVERNMENT STATES FIRST THAT, AS REGARDS THE WALLOON AND BRUSSELS REGIONS, THE BELGIAN AUTHORITIES USE THE AVIFAUNE DE BELGIQUE, A SCIENTIFIC WORK IN WHICH ALMOST ALL BIRD SPECIES COVERED BY THE DIRECTIVE APPEAR, TO DEFINE THE POPULATION OF THE BIRD SPECIES LIVING NATURALLY IN THE WILD STATE IN THEIR TERRITORY . SECONDLY, A MEMBER STATE CAN ONLY TAKE SPECIFIC MEASURES TO PROTECT BIRDS WITHIN ITS TERRITORY . FINALLY, THE COMMISSION ITSELF HAD NOT BEEN ABLE TO PRESENT A COMPLETE LIST OF BIRD SPECIES LIVING NATURALLY IN THE WILD STATE IN THE MEMBER STATES .

21 AS REGARDS ARTICLE 1 OF THE ROYAL DECREE OF 20 JULY 1972, IT MUST BE STATED THAT IT LIMITS THE PROTECTION REQUIRED BY THE DIRECTIVE TO THE SPECIES OF BIRDS LIVING IN THE WILD STATE IN THE BENELUX COUNTRIES . SUCH A PROVISION IS IN ACCORDANCE WITH THE REQUIREMENTS OF THE DIRECTIVE IF IT ALSO COVERS BIRD SPECIES LIVING NATURALLY OR USUALLY IN THE EUROPEAN TERRITORY OF THE MEMBER STATES . IN THIS REGARD IT SHOULD BE NOTED THAT THE WORDING OF THE PROVISION IN QUESTION ALSO COVERS BIRDS WHICH ARE ONLY PASSING THROUGH THE BENELUX COUNTRIES . THESE BIRDS MUST BE REGARDED AS LIVING NATURALLY IN THE WILD STATE IN THE BENELUX COUNTRIES ALBEIT FOR A LIMITED PERIOD . THE COMMISSION' S OBSERVATION THAT THERE ARE SPECIES OF BIRDS COVERED BY THE DIRECTIVE WHICH DO NOT LIVE PERMANENTLY IN THE TERRITORY OF THE BENELUX COUNTRIES AND WHICH DO NOT APPEAR IN THE AVIFAUNE DE BELGIQUE IS THEREFORE IRRELEVANT .

22 HOWEVER, THE PROTECTIVE EFFECT OF THE DIRECTIVE ALSO COVERS SPECIES OF NATURALLY OCCURRING BIRDS IN THE WILD STATE IN THE EUROPEAN TERRITORY OF ANOTHER MEMBER STATE WHICH ARE NOT NATURALLY OR USUALLY TO BE FOUND IN THE TERRITORY OF THE BENELUX COUNTRIES BUT WHICH ARE TRANSPORTED THERE, KEPT THERE OR MARKETED THERE, WHETHER ALIVE OR DEAD . THE PROVISION IN QUESTION DOES NOT EXTEND THE PROTECTION PROVIDED FOR BY THE DIRECTIVE TO THOSE GROUPS OF BIRDS . ARTICLE 1 OF THE ROYAL DECREE DOES NOT, THEREFORE, TRANSPOSE THE WIDER PROTECTION REQUIRED BY THE DIRECTIVE COMPLETELY INTO THE BELGIAN LEGAL ORDER .

23 THE SECOND COMPLAINT MUST THEREFORE BE UPHELD .

THIRD COMPLAINT : PROTECTION OF NESTS

24 THE COMMISSION POINTS OUT THAT ARTICLE 3 ( 2 ) OF THE ROYAL DECREES ALLOWS BIRDS' NESTS BUILT AGAINST HOUSES AND ADJOINING BUILDINGS TO BE DISTURBED, REMOVED OR DESTROYED IN CONTRAVENTION OF ARTICLE 5 ( B ) OF THE DIRECTIVE .

25 THE BELGIAN GOVERNMENT, ON THE OTHER HAND, TAKES THE VIEW THAT THE PROVISION IN QUESTION IS JUSTIFIED BY REASONS OF PUBLIC HEALTH AND SAFETY WITHIN THE MEANING OF THE FIRST INDENT OF ARTICLE 9 ( 1 ) ( A ) OF THE DIRECTIVE . 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, FOR EXAMPLE IN THE FOOD INDUSTRY .

26 IN THIS REGARD IT MUST BE STATED THAT ARTICLE 5 ( B ) OF THE DIRECTIVE REQUIRES THE MEMBER STATES TO PROHIBIT IN PARTICULAR DELIBERATE DESTRUCTION OF, OR DAMAGE TO, NESTS AND EGGS OR REMOVAL OF NESTS, WHEREAS ARTICLE 3 ( 2 ) OF THE ROYAL DECREES GENERALLY PERMITS THE REMOVAL AND DESTRUCTION OF NESTS BUILT AGAINST HOUSES AND ADJOINING BUILDINGS .

27 THE REASONS GIVEN BY THE BELGIAN GOVERNMENT TO JUSTIFY THE CONTESTED PROVISION, NAMELY THE PREVENTION OF FIRES, FLOODS AND DISEASE, ARE CERTAINLY OF SUCH A KIND AS TO JUSTIFY THE REMOVAL AND DESTRUCTION OF NESTS UNDER ARTICLE 9 OF THE DIRECTIVE . HOWEVER, IT IS CLEAR FROM THE BELGIAN GOVERNMENT' S OWN ARGUMENT THAT 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 .

28 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 SPECIFIC SITUATIONS IN WHICH THERE IS NO OTHER SATISFACTORY SOLUTION THAN THE DESTRUCTION OR REMOVAL OF NESTS . THE PROVISION IN QUESTION GENERALLY AUTHORIZES THE DISTURBANCE, REMOVAL OR DESTRUCTION OF BIRDS' NESTS BUILT AGAINST HOUSES AND ADJOINING BUILDINGS . HOWEVER, IT CANNOT BE MAINTAINED THAT ALL NESTS BUILT AGAINST HOUSES AND ADJOINING BUILDINGS ALWAYS REPRESENT A DANGER TO HEALTH . FURTHERMORE, THE DEROGATION DOES NOT COMPLY WITH THE FORMAL REQUIREMENTS OF ARTICLE 9 ( 2 ) EITHER . THE PROVISION DOES NOT SPECIFY THE CONDITIONS OF RISK AND THE CIRCUMSTANCES OF TIME AND PLACE IN WHICH THE DEROGATIONS MAY BE GRANTED OR THE CONTROLS WHICH WILL BE CARRIED OUT . IN THOSE CIRCUMSTANCES IT MUST BE STATED THAT THE DEROGATION PROVIDED FOR IN ARTICLE 3 ( 2 ) OF THE ROYAL DECREES DOES NOT COMPLY WITH THE PROHIBITION CONTAINED IN ARTICLE 5 OF THE DIRECTIVE AND IS TOO GENERAL IN NATURE TO BE JUSTIFIED BY ARTICLE 9 OF THE DIRECTIVE .

29 THE THIRD COMPLAINT MUST THEREFORE BE UPHELD .

FOURTH COMPLAINT : THE DEROGATIONS REGARDING CERTAIN SPECIES OF BIRDS

30 THE COMMISSION' S OBJECTION TO THE BELGIAN GOVERNMENT IS THAT ARTICLES 4 AND 6 OF THE ROYAL DECREES ALLOW CERTAIN PERSONS TO CAPTURE, KILL, DESTROY OR DRIVE AWAY HOUSE*SPARROWS, TREE*SPARROWS AND STARLINGS AND TO DESTROY THEIR EGGS, NESTS AND BROODS AND THEREFORE DEROGATE FROM ARTICLES 5, 6 AND 7 OF THE DIRECTIVE . SUCH A DEROGATION IS NOT COVERED BY ARTICLE 9 OF THE DIRECTIVE .

31 ON THE OTHER HAND, THE BELGIAN GOVERNMENT MAINTAINS THAT THE PROVISIONS COMPLAINED OF ARE JUSTIFIED UNDER ARTICLE 9 OF THE DIRECTIVE . SERIOUS DAMAGE IS CAUSED TO CROPS AND ORCHARDS BY THE BIRD SPECIES CONCERNED . MOREOVER, THE DEROGATION CONCERNING THE STARLING IS JUSTIFIED BY REASONS OF PUBLIC HEALTH SINCE THIS SPECIES IS RESPONSIBLE FOR POLLUTION AND NOISE IN A LARGE NUMBER OF TOWNS AND ON THE COAST .

32 IN THIS REGARD IT IS APPROPRIATE TO RECALL THE WORDING OF ARTICLES 4 AND 6 OF THE ROYAL DECREES . ARTICLE 4 ( 1 ) PROVIDES THAT : "OCCUPANTS AND HUNTING-RIGHT OWNERS, THEIR ATTORNEYS OR SWORN WARDENS AND OFFICIALS AND SERVANTS OF THE WATER AND FORESTRY AUTHORITIES SHALL BE PERMITTED AT ANY TIME TO CAPTURE, KILL, DESTROY OR DRIVE AWAY THE BIRDS, AS WELL AS THEIR EGGS AND BROODS, MENTIONED IN ANNEX 1 TO THIS DECREE ". ANNEX 1 TO THE DECREE LISTS THE HOUSE*SPARROW, THE TREE*SPARROW AND THE STARLING . THE THIRD SUBPARAGRAPH OF ARTICLE 4 ( 1 ) PROVIDES THAT : "THE NESTS OF THESE BIRDS MAY BE DISTURBED, DESTROYED OR REMOVED AT ANY TIME ". FINALLY, THE FOURTH SUBPARAGRAPH OF ARTICLE 4 ( 1 ) PROVIDES THAT : "IT SHALL BE PERMITTED AT ANY TIME TO TRANSPORT THESE BIRDS AND THEIR EGGS, BROODS AND FEATHERS ". ARTICLE 6 ( 1 ) OF THE DECREES ALLOWS BIRDS LISTED INTER ALIA IN ANNEX 1 TO THE DECREES TO BE KEPT AND EXCHANGED AND UNDER ARTICLE 6 ( 2 ) "THE BIRDS SPECIFIED IN ANNEX 1 OF THE PRESENT DECREE MAY BE BOUGHT AND SOLD THROUGHOUT THE YEAR ". ALTHOUGH THE COMMISSION DOES NOT OBJECT TO THE FACT THAT THE PERSONS SPECIFIED ARE ALLOWED TO CAPTURE, KILL, DESTROY OR DRIVE AWAY THE AFORESAID BIRDS, IT IS CLEAR FROM THOSE PROVISIONS THAT FOR THE BIRDS LISTED IN ANNEX 1 TO THE DECREES THERE EXISTS THROUGHOUT BELGIUM A PERMANENT DEROGATION FROM THE PROTECTION PROVIDED FOR IN ARTICLES 5, 6 AND 7 OF THE DIRECTIVE .

33 AS FAR AS CONCERNS THE ARGUMENT PUT FORWARD BY THE BELGIAN GOVERNMENT IN THIS REGARD, IT MUST BE OBSERVED THAT THE FIRST AND THIRD INDENTS OF ARTICLE 9 ( 1 ) ( A ) AUTHORIZE MEMBER STATES TO DEROGATE INTER ALIA FROM ARTICLES 5, 6 AND 7 IN THE INTERESTS OF PUBLIC HEALTH AND SAFETY AND TO PREVENT SERIOUS DAMAGE TO CROPS . IF THE THREE SPECIES SPECIFIED IN ANNEX 1 TO THE ROYAL DECREES CAUSE SERIOUS DAMAGE TO CROPS AND ORCHARDS OR ARE RESPONSIBLE FOR POLLUTION AND NOISE IN TOWNS OR CERTAIN REGIONS, BELGIUM IS IN PRINCIPLE AUTHORIZED TO PROVIDE FOR A DEROGATION FROM THE GENERAL SYSTEM OF PROTECTION PROVIDED FOR IN ARTICLES 5, 6 AND 7 .

34 HOWEVER, AS WAS STATED ABOVE, A DEROGATION UNDER ARTICLE 9 MUST, ACCORDING TO ARTICLE 9 ( 1 ), COVER SPECIFIC SITUATIONS AND, ACCORDING TO ARTICLE 9 ( 2 ), COMPLY WITH THE REQUIREMENTS STATED THEREIN . THE GENERAL DEROGATIONS PROVIDED FOR IN ARTICLES 4 AND 6 OF THE ROYAL DECREES DO NOT COMPLY WITH THOSE CRITERIA AND CONDITIONS . THE BELGIAN RULES DO NOT INDICATE THE REASONS REGARDING THE PROTECTION OF PUBLIC HEALTH OR THE PREVENTION OF SERIOUS DAMAGE TO CROPS OR OTHER FIELDS MENTIONED IN ARTICLE 9 ( 1 ) ( A ) OF THE DIRECTIVE WHICH MIGHT NECESSITATE THE GRANTING TO SUCH A WIDE CATEGORY OF PERSONS OF A PERMANENT DEROGATION, APPLYING THROUGHOUT BELGIUM, FROM THE PROTECTION PROVIDED FOR BY THE DIRECTIVE . FURTHERMORE, THE DEROGATIONS DO NOT COMPLY WITH THE CRITERIA AND CONDITIONS OF ARTICLE 9 ( 2 ) IN SO FAR AS THEY MENTION NEITHER THE CIRCUMSTANCES OF TIME AND PLACE IN WHICH THEY MAY BE GRANTED NOR THE CONTROLS WHICH WILL BE CARRIED OUT . CONSEQUENTLY, IT MUST BE STATED THAT OWING TO THEIR GENERALITY, THE DEROGATIONS EXCEED THE LIMITS SET BY ARTICLE 9 OF THE DIRECTIVE .

35 THE FOURTH COMPLAINT MUST THEREFORE BE UPHELD .

FIFTH COMPLAINT : THE LIST OF BIRDS WHICH MAY BE KEPT AND THE CAPTURE OF BIRDS IN SMALL QUANTITIES

36 THE COMMISSION MAINTAINS THAT IT IS PERMITTED UNDER ARTICLE 6 ( 1 ) OF THE ROYAL DECREES TO KEEP OR EXCHANGE THE BIRD SPECIES LISTED IN ANNEX 2 TO THE DECREES . HOWEVER, NONE OF THE SPECIES LISTED IN ANNEX 2 TO THE ROYAL DECREES APPEAR IN ANNEX III TO THE DIRECTIVE .

37 THE BELGIAN GOVERNMENT DOES NOT DENY THAT THE LIST OF BIRDS SET OUT IN ANNEX 2 TO THE ROYAL DECREES DOES NOT CORRESPOND TO THE LIST OF BIRDS SPECIFIED IN ANNEX III TO THE DIRECTIVE . HOWEVER, IT POINTS OUT THAT, AS REGARDS THE FLEMISH REGION, ONLY FOUR SPECIES MAY BE CAPTURED AND KEPT . AS FOR THE WALLOON REGION, THE LIST OF SPECIES SET OUT IN ANNEX 2 TO THE ROYAL DECREE OF 20 JULY 1972 WAS REDUCED TO 16 BY THE ORDER OF THE WALLOON REGIONAL EXECUTIVE OF 1 JULY 1982 ( MONITEUR BELGE OF 30 JULY 1982 ). MOREOVER, THE BELGIAN GOVERNMENT CONSIDERS THAT CAPTURE IS NOT A THREAT TO THE BELGIAN BIRD POPULATION AND IS JUSTIFIED BY ARTICLE 9 ( 1 ) ( C ).

38 AS FOR THE POLICY OF GRANTING PERMITS TO CAPTURE AND KEEP BIRDS, THE BELGIAN GOVERNMENT REFERS TO THE MINISTERIAL ORDER OF 14 SEPTEMBER 1981 ( MONITEUR BELGE OF 13 NOVEMBER 1981 ) AND THE ORDER OF THE WALLOON REGIONAL EXECUTIVE OF 28 JULY 1982 ( MONITEUR BELGE OF 18 SEPTEMBER 1982 ) WHICH IMPOSE VERY RESTRICTIVE CONDITIONS FOR THE GRANT OF SUCH PERMITS . FINALLY, CAPTURE IS JUSTIFIED BY RECREATIONAL REQUIREMENTS MENTIONED IN ARTICLE 2 OF THE DIRECTIVE .

39 AS REGARDS ARTICLE 6 ( 1 ) OF THE ROYAL DECREES CONCERNING THE LIST OF BIRD SPECIES WHICH MAY BE CAPTURED, KEPT OR EXCHANGED, IT MUST BE STATED AT THE OUTSET THAT, UNDER ARTICLE 6 OF THE DIRECTIVE, KEEPING FOR SALE IS PERMITTED ONLY UNDER CERTAIN CONDITIONS AND THEN ONLY FOR THE SPECIES MENTIONED IN ANNEX III . MOREOVER, THAT LIST DOES NOT CORRESPOND TO ANNEX II TO THE DIRECTIVE, IN WHICH THE SPECIES WHICH MAY BE HUNTED AND KEPT UNDER ARTICLE 5 ( E ) OF THE DIRECTIVE ARE SET OUT .

40 AS REGARDS THE ARGUMENT OF THE BELGIAN GOVERNMENT BASED ON ARTICLE 9 ( 1 ) ( C ), IT MUST BE STATED THAT THE ORDERS OF 14 SEPTEMBER 1981 AND 28 JULY 1982, IMPLEMENTING ARTICLE 6 OF THE ROYAL DECREES, SUBJECT THE PEOPLE AUTHORIZED TO CAPTURE AND KEEP BIRDS AND THE CAPTURE AND KEEPING ITSELF TO STRICT RULES AND CONTROLS . ACCORDING TO ARTICLES 4 AND 5 OF THE ORDER OF 14 SEPTEMBER 1981 AND ARTICLE 5 OF THE ORDER OF 28 JULY 1982, THE COMPETENT AUTHORITIES ARE TO DETERMINE EACH YEAR THE BIRD SPECIES WHICH MAY BE CAPTURED, THE NUMBER OF BIRDS WHICH MAY BE CAPTURED AND THE PERIOD DURING WHICH CAPTURE MAY TAKE PLACE .

41 AS REGARDS THE APPLICATION OF ARTICLE 9 ( 1 ) ( C ), IT MUST THEREFORE BE OBSERVED FIRST OF ALL THAT ARTICLE 6 ( 1 ) OF THE ROYAL DECREES GIVES RISE TO AN UNCERTAIN AND AMBIGUOUS LEGAL SITUATION BY ALLOWING THE LIST OF BIRDS WHICH MAY BE HUNTED AND KEPT TO BE CHANGED AS AND WHEN THE COMPETENT ADMINISTRATION CONSIDERS FIT . THE GENERAL AND PERMANENT RULES LAID DOWN IN THE DECREES DO NOT GUARANTEE THAT THE NUMBER OF BIRDS WHICH MAY BE CAPTURED IS LIMITED TO SMALL QUANTITIES, THAT THE PERIOD DURING WHICH THEIR CAPTURE IS ALLOWED DOES NOT COINCIDE WITH PERIODS IN WHICH THE DIRECTIVE SEEKS TO PROVIDE PARTICULAR PROTECTION FOR BIRDS ( THE NESTING PERIOD AND THE VARIOUS STAGES OF BREEDING AND REARING ) OR THAT CAPTURE AND KEEPING ARE RESTRICTED TO CASES IN WHICH THERE IS NO OTHER SATISFACTORY SOLUTION, IN PARTICULAR THE POSSIBILITY THAT THE BIRD SPECIES CONCERNED MAY REPRODUCE IN CAPTIVITY . THE CRITERIA AND CONDITIONS LAID DOWN IN ARTICLE 9 OF THE DIRECTIVE ARE NOT THEREFORE FULLY TRANSPOSED INTO THE RULES CONCERNED . CONSEQUENTLY, THE BELGIAN GOVERNMENT MAY NOT RELY ON ARTICLE 9 ( 1 ) ( C ) OF THE DIRECTIVE .

42 AS REGARDS THE ARGUMENT OF THE BELGIAN GOVERNMENT BASED ON ARTICLE 2 OF THE DIRECTIVE, IT MUST BE RECALLED, AS HAS ALREADY BEEN POINTED OUT, THAT THIS PROVISION DOES NOT AUTHORIZE THE MEMBER STATES TO DEROGATE FROM THE REQUIREMENTS OF THE DIRECTIVE .

43 THE FIFTH COMPLAINT MUST THEREFORE BE CONSIDERED WELL FOUNDED .

SIXTH COMPLAINT : THE TRANSPORT OF BIRDS

44 THE COMMISSION MAINTAINS THAT ARTICLE 7 OF THE ROYAL DECREES ALLOWS BIRDS BELONGING TO THE SPECIES SPECIFIED IN ANNEXES 2 AND 3 TO THE DECREES TO BE TRANSPORTED PROVIDED THAT CERTAIN CONDITIONS ARE FULFILLED . SINCE BIRDS CANNOT BE TRANSPORTED WITHOUT BEING KEPT, THE SPECIES OF BIRDS LISTED IN THE ANNEXES TO THE DECREES OUGHT TO CORRESPOND, IN ACCORDANCE WITH ARTICLES 5 ( E ) AND 6 ( 1 ) OF THE DIRECTIVE, TO THE SPECIES LISTED IN ANNEX III TO THE DIRECTIVE . HOWEVER, THIS IS NOT THE CASE FOR ANY OF THE SPECIES IN QUESTION .

45 THE BELGIAN GOVERNMENT MAINTAINS THAT THIS COMPLAINT APPLIES ONLY TO THE REGIONS OF WALLONIA AND BRUSSELS . AS REGARDS THE SUBSTANCE OF THE COMPLAINT, IT OBSERVES THAT IN SO FAR AS THE CAPTURE AND KEEPING OF CERTAIN SPECIES IS AUTHORIZED UNDER ARTICLE 9 ( 1 ) ( C ) OF THE DIRECTIVE THE TRANSPORT OF THOSE SPECIES IS ALSO AUTHORIZED .

46 AS REGARDS THE QUESTION WHETHER THE COMPLAINT ALSO APPLIES TO THE FLEMISH REGION WHICH THE COMMISSION MAINTAINED AT THE HEARING, IT MUST BE STATED THAT THIS QUESTION IS IRRELEVANT SINCE IT UNDOUBTEDLY APPLIES TO THE RULES IN FORCE IN THE REGIONS OF WALLONIA AND BRUSSELS AND THE COMPLAINT IS DIRECTED AGAINST THE KINGDOM OF BELGIUM WHICH IS RESPONSIBLE FOR ENSURING THAT ALL ITS NATIONAL RULES ARE IN CONFORMITY WITH COMMUNITY LAW .

47 AS ALREADY STATED ABOVE, THE LIST OF BIRDS SPECIFIED IN ANNEXES 2 AND 3 TO THE ROYAL DECREES DOES NOT CORRESPOND TO THE LIST OF BIRDS APPEARING IN ANNEX III TO THE DIRECTIVE . THE BELGIAN GOVERNMENT MAY NOT THEREFORE RELY ON THE PROVISIONS OF ARTICLE 6 ( 2 ), ( 3 ) AND ( 4 ) OF THE DIRECTIVE . THE AFORESAID LIST DOES NOT CORRESPOND WITH ANNEX II TO THE DIRECTIVE EITHER . THE KEEPING OF THESE BIRDS IS NOT THEREFORE ALLOWED UNDER ARTICLE 5 ( E ) OF THE DIRECTIVE .

48 AS REGARDS THE ARGUMENT BASED ON ARTICLE 9 ( 1 ) ( C ) OF THE DIRECTIVE, THE BELGIAN GOVERNMENT IS RIGHT TO POINT OUT THAT IF THE CAPTURE AND KEEPING OF CERTAIN SPECIES MAY BE AUTHORIZED UNDER ARTICLE 9 ( 1 ) ( C ) OF THE DIRECTIVE, THEIR TRANSPORT MAY BE AUTHORIZED AS WELL . AS WELL AS THE CAPTURE AND KEEPING OF SUCH SPECIES, THIS PROVISION ALLOWS ANY OTHER JUDICIOUS USE . THE TRANSPORT OF BIRDS WHICH HAVE BEEN LAWFULLY CAPTURED OR KEPT CONSTITUTES SUCH JUDICIOUS USE . HOWEVER, THE COMMISSION CORRECTLY OBJECTS THAT ARTICLE 7 OF THE ROYAL DECREES PERMITS THE TRANSPORT OF BIRDS WHICH HAVE NOT BEEN LAWFULLY CAPTURED OR KEPT . IF THE KEEPING OF BIRDS PERMITTED BY ARTICLE 6 ( 1 ) OF THE ROYAL DECREES DOES NOT ACCORD WITH ARTICLES 5 AND 6 OF THE DIRECTIVE, THE TRANSPORT OF THESE BIRDS, WHICH PRESUPPOSES THAT THEY ARE KEPT, DOES NOT ACCORD WITH THOSE ARTICLES EITHER . SINCE ARTICLE 6 OF THE ROYAL DECREES DOES NOT COMPLY WITH THE REQUIREMENTS OF THE DIRECTIVE, ARTICLE 7 DOES NOT ACCORD WITH THE PROVISIONS OF THE DIRECTIVE EITHER .

49 THE SIXTH COMPLAINT MUST THEREFORE BE UPHELD .

SEVENTH COMPLAINT : DEROGATION FOR BIRDS OF A PARTICULAR COLOUR

50 THE COMMISSION HAS NOTED THAT ARTICLE 7 ( 2 ) OF THE ROYAL DECREE OF 20 JULY 1972 AND ARTICLE 6 ( 4 ) OF THE ROYAL DECREE OF 9 SEPTEMBER 1981 ALLOW BIRDS OF A MARKEDLY DIFFERENT COLOUR FROM BIRDS OF THE SAME SPECIES, SUBSPECIES OR VARIETY LIVING IN THE WILD TO BE KEPT, TRANSPORTED AND BOUGHT AND SOLD THROUGHOUT THE YEAR . THE COMMISSION MAINTAINS THAT THIS PROVISION IS INCOMPATIBLE WITH ARTICLE 5 ( E ) AND ARTICLE 6 ( 1 ) OF THE DIRECTIVE .

51 THE BELGIAN GOVERNMENT ARGUES THAT THE MAJORITY OF THE BIRDS AFFECTED BY THE AFOREMENTIONED PROVISIONS ARE NOT NATURALLY OCCURRING BIRDS IN THE WILD STATE WITHIN THE MEANING OF ARTICLE 1 OF THE DIRECTIVE . FURTHERMORE, THOSE PROVISIONS MEET THE CONCERN TO LIMIT THE POSSIBILITY OF OBTAINING BIRDS IN THE WILD STATE IN ORDER TO PUT THEM IN CAGES . HOWEVER, THE BELGIAN GOVERNMENT ADMITS THAT THE PROVISION MAY ALSO APPLY TO "RARE MUTANTS ".

52 IN THIS REGARD IT MUST BE NOTED THAT THE DECREES APPLY, ACCORDING TO ARTICLE 1 THEREOF, "TO ALL BIRDS BELONGING TO ONE OF THE SPECIES ... OCCURRING IN THE WILD STATE ". THE COMMISSION HAS POINTED OUT, WITHOUT BEING CHALLENGED ON THIS POINT BY THE BELGIAN GOVERNMENT, THAT CHROMATIC ABERRATIONS WHEREBY THE COLOURS OF BIRDS DIFFER FROM THOSE OF "NORMAL" SPECIES OCCUR IN NATURE . IT MUST ALSO BE BORNE IN MIND THAT THE GENERAL SYSTEM OF PROTECTION WHICH THE DIRECTIVE SEEKS TO ESTABLISH CONCERNS ALL BIRD SPECIES, INCLUDING THOSE WITH CHROMATIC ABERRATIONS, EVEN IF SUCH SPECIES ARE RARE . HOWEVER, AS FAR AS THOSE BIRDS ARE CONCERNED, THE PROVISIONS IN QUESTION DEROGATE FROM THE PROTECTION AFFORDED BY ARTICLE 5 ( E ) AND ARTICLE 6 ( 1 ) OF THE DIRECTIVE .

53 THE SEVENTH COMPLAINT MUST THEREFORE BE UPHELD .

EIGHTH COMPLAINT : DEROGATION FOR THE PREVENTION OF DAMAGE

54 THE COMMISSION BASES THIS COMPLAINT ON THE FACT THAT FOR THE REGIONS OF WALLONIA AND BRUSSELS, ARTICLE 9 ( 1 ) OF THE ROYAL DECREE OF 20 JULY 1972 ALLOWS THE MINISTER CONCERNED INTER ALIA TO AUTHORIZE TEMPORARY DEROGATIONS FROM THE GENERAL PROVISIONS CONCERNING THE PROTECTION OF BIRDS IN ORDER TO PREVENT DAMAGE OR FOR A PURPOSE OF LOCAL INTEREST . IN THE COMMISSION' S VIEW, IT IS ESSENTIAL THAT THE EXPRESSION "SERIOUS DAMAGE", WHICH APPEARS IN THE THIRD INDENT OF ARTICLE 9 ( 1 ) ( A ) OF THE DIRECTIVE, SHOULD BE USED IN THE BELGIAN LEGISLATION . MOREOVER, THAT ARTICLE DOES NOT RECOGNIZE LOCAL INTEREST AS A VALID REASON FOR A DEROGATION .

55 THE BELGIAN GOVERNMENT ARGUES THAT THE CONCEPT OF SERIOUS DAMAGE IS NOT DEFINED IN THE DIRECTIVE SO THAT INTERPRETATIONS OTHER THAN THOSE OF THE COMMISSION ARE POSSIBLE . FURTHERMORE, THE GENERAL SCHEME OF THE ROYAL DECREE OF 20 JULY 1972 MEETS THE REQUIREMENTS OF ARTICLE 9 ( 2 ) OF THE DIRECTIVE .

56 IN THIS REGARD IT MUST BE NOTED THAT THE AIM OF THIS PROVISION OF THE DIRECTIVE IS NOT TO PREVENT THE THREAT OF MINOR DAMAGE . THE FACT THAT A CERTAIN DEGREE OF DAMAGE IS REQUIRED FOR THIS DEROGATION FROM THE GENERAL SYSTEM OF PROTECTION ACCORDS WITH THE DEGREE OF PROTECTION SOUGHT BY THE DIRECTIVE .

57 IT MUST, HOWEVER, BE NOTED THAT THE COMMISSION HAS NOT PROVED THAT THE CONCEPT OF "DAMAGE" IN THE BELGIAN RULES IS NOT INTERPRETED AND APPLIED IN THE SAME WAY AS THE CONCEPT OF "SERIOUS DAMAGE" IN THE THIRD INDENT OF ARTICLE 9 ( 1 ) ( A ) OF THE DIRECTIVE . THIS PART OF THE COMPLAINT CANNOT THEREFORE BE UPHELD .

58 AS REGARDS THE CONCEPT OF LOCAL INTEREST, IT MUST BE OBSERVED THAT THIS DOES NOT APPEAR AMONGST THE REASONS, LISTED LIMITATIVELY

IN ARTICLE 9 ( 1 ) OF THE DIRECTIVE, FOR WHICH MEMBER STATES MAY DEROGATE FROM THE PROTECTIVE PROVISIONS OF THE DIRECTIVE . IT FOLLOWS THAT THE BELGIAN GOVERNMENT MAY NOT JUSTIFY ARTICLE 9 ( 1 ) OF THE ROYAL DECREE OF 20 JULY 1972 ON THE BASIS OF ARTICLE 9 ( 1 ) OF THE DIRECTIVE . IN THOSE CIRCUMSTANCES, IT IS NOT NECESSARY TO EXAMINE WHETHER THE ROYAL DECREE IN QUESTION ALSO SATISFIES THE REQUIREMENTS OF ARTICLE 9 ( 2 ) OF THE DIRECTIVE .

59 THE EIGHTH COMPLAINT MUST THEREFORE BE UPHELD IN PART .

60 IT MUST THEREFORE BE DECLARED THAT, BY NOT ADOPTING WITHIN THE PRESCRIBED PERIOD ALL THE LAWS, REGULATIONS AND ADMINISTRATIVE PROVISIONS NEEDED TO COMPLY WITH COUNCIL DIRECTIVE 79/409/EEC OF 2 APRIL 1979 ON THE CONSERVATION OF WILD BIRDS, THE KINGDOM OF BELGIUM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY .

COSTS

61 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY' S PLEADINGS . SINCE THE DEFENDANT HAS FAILED ON MOST POINTS, IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS,

THE COURT

HEREBY :

( 1 ) DECLARES THAT, BY NOT ADOPTING WITHIN THE PRESCRIBED PERIOD ALL THE LAWS, REGULATIONS AND ADMINISTRATIVE PROVISIONS NEEDED TO COMPLY WITH COUNCIL DIRECTIVE 79/409/EEC OF 2 APRIL 1979 ON THE CONSERVATION OF WILD BIRDS, THE KINGDOM OF BELGIUM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY;

( 2 ) ORDERS THE KINGDOM OF BELGIUM TO PAY THE COSTS .