92002E2903

WRITTEN QUESTION E-2903/02

by Benedetto Della Vedova (NI) to the Commission

(16 October 2002)

Subject: Italy's infringement of Council Directive 79/409/EEC of 2 April 1979 as a result of Law No 7 of the Veneto Region of 14 March 2002

By virtue of Regional Law No 7 of 14 March 2002 the Veneto Region has allowed, during the 2002/2003 and 2003/2004 hunting seasons, the hunting of the following species of wild birds protected by Directive 79/409/EEC(1): Passer italiae, Passer montanus, Sturnus vulgaris, Streptopelia decaocto and Phalacrocorax carbo from 15 September to 31 December, each hunter being allowed to kill 20 birds per day and up to 100 per year; Fringilla coelebs and Fringilla montifringilla from 15 September to 31 December, each hunter being entitled to kill up to 5 birds per day and up to 40 per year.

According to the Court of Justice(2), Article 9(2) of Council Directive 79/409/EEC requires an administrative authority to determine in respect of the cases falling within the scope of Article 9(1), if the conditions of that paragraph are fulfilled, in what area and for what birds hunting may exceptionally be authorised. The authorities responsible under Article 9(2) of the directive must also examine whether there is any other satisfactory solution which would allow the problem in the particular case to be resolved without the need to resort to the granting of a derogation.

The derogation in question was granted not by an administrative authority specified beforehand in accordance with a regular administrative procedure, but directly, by means of Regional Law No 7/2000. The existence of the conditions required by the directive was therefore asserted as an incontrovertible legal truth. In the case of the species Fringilla coelebs and Fringilla montifringilla, the derogation was not justified, in blatant contravention of Article 9(1)(c) of the directive.

In this Regional Law the Italian Republic has failed to fulfil its obligations under the Treaties, since it is incompatible with Community legislation that a Member State or one of its regional authorities should, at short notice, adopt legislative acts with an essentially administrative content in order to circumvent Community law.

Can the Commission say whether it intends to bring proceedings against the Italian Republic for failure to fulfil its obligations in accordance with Article 226 of the TEC, on the grounds that Law No 7 of the Veneto Region of 14 March 2002 infringes Directive 79/409/EEC?

(1) OJ L 103, 25.4.1979, p. 1.

(2) Judgment of 17.5.2001, in Case C-159/99.

Answer given by Mrs Wallström on behalf of the Commission

(18 November 2002)

As regards the general issue on derogations under Article 9 of Council Directive 79/409/EEC of 2 April 1979, on the conservation of wild birds, the Honourable Member is kindly requested to refer to the reply given to his Written Question E-2688/02(1).

As regards the hunting legislation in Regione Veneto, the Commission is not aware of the situation described by the Honourable Member. The Commission will, therefore, take the appropriate steps to gather detailed information and to ensure, within the limits conferred on it by the Treaty, the observance of Community law.

Should the Commission be informed that Community law is being breached in the specific case, it would not hesitate, as the Guardian of the EC Treaty, to take all necessary measures, including infringement procedures under Article 226 of the EC Treaty, in order to ensure the observance of relevant Community law.

(1) See page 90.