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species which may be hunted from 18 August until 31 December:

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species which may be hunted from 18 August until 28 February:

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species which may be hunted from 18 August until 10 March:

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species which may be hunted from the third Sunday in September until 13 December:

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species which may be hunted from the third Sunday in September until 28 February:

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species which may be hunted from the third Sunday in September until 10 March:

Declare that, by authorizing the hunting of various species of wild birds during their rearing season and their period of reproduction, and of various migratory species during the period in which they return to their rearing grounds, the Italian Republic has failed to fulfil its obligations under Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds;

Order the defendant to pay the costs.

Dismiss the application;

Order the defendant to pay the costs.

1.

The Italian Government considers that the complaints set out in the application have already been made by the Commission in Case 262/85 which was the subject of the judgment of the Court of 8 July 1987(Commission v Italian Republic [1987] ECR 3073). It states that the Court rejected both limbs of the third complaint in these proceedings. In consequence, the principle non bis in idem bars a fresh examination of those questions in other proceedings.

2.

The Commission states that in this case the application does not relate to the provision in Italian legislation for different opening and closing dates for the hunting season in order to take account of the different periods during which birds must be protected, but to the validity of the dates chosen by the Italian legislature for the various hunting periods as regards certain species of birds.

The Commission states that the third complaint in Case 262/85, which gave rise to the judgment of the Court of 8 July 1987, consisted of two limbs — one to the effect that there was no provision for different dates for the opening and closing of the hunting season, which was rejected by the Court as unfounded, and another concerning the appropriateness of opening and closing the hunting season at particular dates, which was dismissed on the ground that it extended the scope of the complaint made in the pre-litigation procedure.

1.

The Commission maintains that the Italian rules fixing the opening and closing date of the hunting season for certain species of birds do not take account of the requirements of Article 7(4) of the Directive.

(a) First complaint

The Commission claims that the Italian provisions authorizing the hunting of the coot, moorhen, mallard and blackbird from 18 August infringes Article 7(4) of the Directive, because the reproduction and rearing period of those species is not yet over on that date.

The Commission gives the following particulars in relation to those birds:

(b) Second complaint

The Commission considers that the directive is infringed by the national rules authorizing hunting until 28 February and even 10 March in the case of certain migratory species which cross Italy during January, February and March on their way to their breeding grounds in central and northern Europe. The birds concerned as follows:

2.

The Italian Government challenges the basis of the action in so far as the complaints are based on factual claims (that the reproduction and rearing season or the species referred to in the first complaint lasts until 18 August; that the species referred to in the second complaint cross Italy in January, February and March) which the Commission has to prove. It further considers that those factual claims are not proved by the bibliography contained in the application.

(a) First complaint

The Italian Government considers that the Commission's claim that the coot, the moorhen, the mallard and the blackbird, which may be hunted in Italy as from 18 August, are still reproducing and rearing at that date is based solely on the bibliography set out in the application and that that list of works is of a general nature and cannot be applied specifically to the situation obtaining in Italy.

In its view, the species in question are potentially independent as from 18 August. There may, however, be instances of late clutches and incubation, with the result that in some cases the young may still be dependent in the second half of August, but this may not be extrapolated to cover the whole of Italy and the cases in question are exceptional.

The Italian Government maintains that the national legislature has taken due account of the requirement to protect all the species during the rearing and reproduction periods. In its view, Law No 968/77 has tackled that requirement scientifically in a way related specifically to Italy, by adopting a hunting calendar embodying a variety of hunting seasons which are designed specifically to protect the various species of birds during the delicate stages of rearing and reproduction.

The Italian Government adds that the regions may deal with such exceptional, non-generalized situations by exercising the power conferred on them by the first paragraph of Article 12 of Law No 968/77. Consequently, the Italian legislation makes provision for instruments whereby the opening of the hunting season may be postponed in areas where such exceptional circumstances come to pass.

The Italian Government points out that more than half the Italian regions, for reasons other than those set out in the first paragraph of Article 12 of Law No 968/77, and above all for reasons connected with tourism or agriculture, have postponed until mid-September or later the general opening of the hunting season in their areas. As a result, thanks to the hunting calendars in force, the danger of hunting taking place is in fact precluded in more than half the Italian regions.

The Italian Government points out that that exceptional provision enables the protection of birds in the usual nesting, breeding and rearing period to be stepped up as a result of action by the regions, which, in particular cases, may alter the local hunting calendar, if the nesting, breeding and rearing period is altered by seasonal or climatic conditions, in order to ensure that the protection generally provided by the law is guaranteed also in those particular special circumstances.

The Italian Government states that, as a rule, the reproduction period of the coot, the moorhen and the blackbird does not overlap with the hunting season. Only mallards may in some regions of Italy possibly still be dependent during the initial stage of the hunting season. There is in Italy a very marked migratory flow of mallards which takes place after the birds have bred and in comparison the size of the mallard population which nests in Italy in a given year is tiny. As a result, only a few local groups — and then only in certain areas of Italy — are likely to be in the last stage of the reproductive cycle in hunting seasons provided for by the national calendar.

(b) Second complaint

The Italian Government maintains that the claim that the species of migratory birds mentioned in the application cross Italy during January, February and March on their way to their nesting areas in central and northern Europe, with the result that they must be protected as from January, yet they may be hunted in Italy until 28 February or even 10 March, is also based on the bibliography set out in the application.

The Italian Government states that the national legislation in question tailored the opening and closing dates of the hunting season to suit the requirements of the International Convention for the Protection of Birds, adopted in Paris on 18 October 1950, following Italy's accession to the Convention (Law No 812/78 of 24 November 1978). Article 2(a) of the Convention provides that migrants must be protected during their return flight to their nesting ground, particularly in March, April, May, June and July.

The Italian Government states that the Decree of 20 December 1979, which fixed 28 February and 10 March as the opening dates for the hunting of the species listed in the application, was adopted after consulting the Istituto Nazionale di Biologia della Selvaggina (National Biological Institution for Wild Animal Species) and the Comitato Tecnico Venatorio Nazionale (National Technical Committee for Hunting). That decree, which relates to the specific situation in Italy, brought the national hunting calendar into line with the 1950 Convention and requires the closure of the hunting season to be geared to the natural propensities and migratory requirements of the individual species.

The Italian Government maintains that, in the absence of contrary requirements in Directive 79/409 or of specific evidence to the contrary relating specifically to the situation in Italy, the relevant requirements of the Paris Convention may be adopted as the yardstick for the appropriate protection of migratory birds after adjustment in relation to the aim pursued by Article 7(4) of the Directive.

The Italian Government also refers to the preamble to the Decree of 20 December 1979, which states that at least for the first 10 days of March Italy is not normally affected by significant bird migration and that individual birds of a given species which are found in Italy up to that date generally have not begun their return journey to their rearing grounds. That reasoning is even more applicable to February and attests to the fact that massive migration does not occur until the second half of March.

In the Italian Government's view, the phrase ‘during their return to their rearing grounds’ in Article 7(4) of the Directive leaves a certain discretion in determining that period both in absolute terms and in each Member State. It therefore seems that it can be considered that the Directive and the Convention are based on the same requirements as regards the protection of migratory species during their return to their rearing grounds. It follows that since the national legislation at issue has been tailored to suit the requirements as to protection which are set out in the Paris Convention, it also complies with the same requirements as are set forth in Directive 79/409.

The Italian Government adds that special situations affecting migratory species may also receive extended protection from the regions, pursuant to Article 12 of Law No 968/77.

3.

As regards the scientific basis for its claims, the Commission observes that the works cited in the application, and in particular Cramps & Simmons, Handbook of the Birds of Europe, the Middle East and North Africa (Oxford University Press, 1980-88, five volumes, 4400 pages), are essential reference works and unchallenged in international scientific circles; their merit cannot be denied by a mere assertion of the Italian Government, unsupported by bibliographical references, to the effect that, although they are concerned with southern Europe, they do not apply to Italy owing to its special features and geographical complexity.

On the contrary, the relevance of Cramps & Simmons to the situation in Italy, in particular as regards the spring migration of protected birds, is confirmed by the report presented in May 1986 to the Nuremberg International Congress ‘Wildtiere und Umwelt’ (Wild animals and environment) by the Istituto Nazionale di Biologia della Selvaggina, that is to say, precisely the Institution which is cited in the preamble to the Decrees of 20 December 1979 and 4 June 1982.

The Commission observes that that report, which is entitled ‘Problems of the conservation of migratory birds with particular regard to hunting during their return to their rearing grounds’, refers in several places to Cramps & Simmons.

Furthermore, the report states as follows with regard to the situation of the migratory species crossing the Mediterranean areas:

‘The disturbance caused by hunting gives rise to constant stress among migrating groups, which causes them to consume greater energy in moving on and fleeing and, at the same time, tends to reduce considerably the time which they can devote to feeding. Both these factors have adverse repercussions on the energy balance of each individual and are therefore likely to make an indirect contribution towards increasing overall mortality in the populations subject to prolonged pressure from hunting. This phenomenon is very serious in situations or periods in which the birds are weakened or have to feed copiously in order to accumulate energy for migration.

During the second half of winter, preparation for the return journey constitutes migrants' main activity and, in addition, in the case of several species that migration takes place concurrently with courtship and mating. Even limited hunting during that period can have adverse effects on productivity during the nesting season which follows.

During the journey to their summer quarters birds which stop are generally forced to do so in order to feed; as a general rule that migration is faster than the autumnal migration owing to major hormonal phenomena. Mediterranean areas especially, such as Italy, constitute for many long-range migratory species from Africa the first suitable staging post. Several species which in the autumn follow the more easterly routes cross the Sahara and the Mediterranean non-stop in order to reach their rearing grounds more quickly.

(...)

If the hunting season is excessively extended it may have an adverse effect, not only on the species which are hunted, but also, owing to the disturbance it causes, on various species which are not hunted but occupy the same habitat and it may be regarded as a factor limiting the possibilities for the colonization of new territory by pioneer migratory species. This is borne out by, for example, the recent colonization by several species of certain areas of Piedmont following the early closing of the hunting season in that area.’

The report contains a ‘note on the migration of species which are currently hunted in Italy, having regard in particular to the phenology of their return across Italy to their rearing grounds’ together with a brief analysis of the phenology of the return migration to the nesting grounds for the majority of species hunted in Italy.

According to the report, an analysis of data kept at the Istituto Nazionale di Biologia delia Selvaggina (national ringing programme) for birds ringed abroad and caught or notified in Italy has supplied more detailed information in relation to Italy. A total of 3300 cards have been studied relating to 17 species which are either entirely migratory through Italy or partially migratory and partially wintering there. In an annex to the report there is a graph of sightings over time for the species in question. In the case of wholly migratory species the period analysed extends from January to April, whilst in the case of species which spend a major proportion of the winter in Italy the period extends from September to April.

The graph shows the wigeon (anas penelope), the gadwall (anas streperà), the teal {anas crecca), the mallard (anas platyrhynchus), the pintail (anas acuta), the garganey (anas querquedula), the shoveler (anas clypeata), the pochard (aythya ferina), the tufted duck (aythya fuligula), the coot (fidica atra), the golden plover (pluvialis apricaria), the lapwing (vanellus vanellus), the ruff/reeve (philomachus pugnai), the snipe {gallinago gallinago), the black-tailed godwit (limosa limosa), the curlew (numenius arquata), the redshank {tringa totanus), the starling (stumus vulgaris), the blackbird (turdus merüld), the fieldfare (turdus pilaris), the song-thrush (turdus philomelos) and the redwing (turdus iliacus).

The Commission observes that according to the Istituto Nazionale di Biologia della Selvaggina hunting must end in mid-winter and geographical, climatic and ecological considerations determine what must be understood by mid-winter at the various latitudes. The Institution determined mid-winter as no later than 31 January in the case of southern Europe.

The Commission takes the view that the international scientific literature which it cites constitutes sufficient proof of the factual claims made in the application, the reliability is in no way called in to question by unsubstantiated allegations.

4.

The Italian Government considers that it is for the applicant to prove the alleged inadequacy of the protection offered by the national Law by reference to the individual species of migratory birds and to the geographical situation of Italy. The complaints are put forward in a general, blanket manner without taking account of the particular situation of each migratory species.

The Italian Government maintains that the propositions set out in the studies cannot be treated as if they were objective, irrefutable factors when they refer to specific, actual situations. In its opinion, it is not sufficient to depict a general scientific model of southern Europe and to apply it indiscriminately to the situation in Italy, thereby equating Italy completely, in spite of its special features and complex geography, to other countries of southern Europe.

1

By application lodged at the Court Registry on 2 May 1989, the Commission of the European Communities brought an action before the Court under Article 169 of the EEC Treaty for a declaration that, by authorizing the hunting of various species of birds during the rearing season and during the various stages of reproduction and the hunting of various migratory species during their return to their rearing grounds, the Italian Republic has failed to fulfil its obligations under Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (Official Journal, L 103, p. 1).

2

The Commission maintains that the Italian legislation on hunting is incompatible with the second and third sentences of Article 7(4) of the Directive in so far as that legislation authorizes, first, the hunting of certain birds as from 18 August, even though the species concerned are still at the stage of reproduction and rearing at that date, and, secondly, the hunting of certain migratory birds until 28 February or 10 March, depending on the species, even though at those dates birds of the species in question are already flying over Italy on their way back to their rearing grounds.

3

The Commission refers in support of its allegations to a number of scientific publications, and in particular to Cramps & Simmons, Handbook of the Birds of Europe, the Middle East and North America, and to a report concerning the spring migration of birds which was drawn up by the Istituto Nazionale di Biologia della Selvaggina (Bologna).

4

Reference is made to the Report for the Hearing for the relevant legislation and the facts of the case, 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.

5

The Italian Government considers that the complaints set out in the application have already been rejected by the Court in the judgment of 8 July 1987 in Case 262/85 Commission v Italian Republic [1987] ECR 3073, with the result that they may not be raised for a second time.

6

In response the Commission argues that in this case it is not seeking a declaration that, in fixing the dates for the opening of the hunting season, the Italian legislation did not take account of the various periods mentioned in Article 7(4) of the Directive during which birds must be protected, but a declaration that the dates chosen by the Italian Government for the various hunting seasons do not comply with the requirements of that provision. In Case 262/85, the Commission raised that complaint in the reply. Consequently it was dismissed by the Court simply because it had not been raised during the pre-litigation procedure or in the application.

7

The Italian Government's objection cannot be upheld. It appears from the aforementioned judgment that the complaint concerning the need to prohibit hunting during certain periods was disregarded in that case on procedural grounds. Accordingly, the Court did not rule on whether that complaint was well-founded.

8

The Italian Government argues in the first place that the Italian legislation complies with the requirements laid down in the second and third sentences of Article 7(4) of the Directive, since, on the one hand, most fledglings of the species in question normally have become independent of their parents by 18 August and, in the second place, depending on the species, the migratory birds in question normally do not fly over Italy in substantial numbers before 28 February or 10 March.

9

The Italian Government also maintains that the reference works cited by the Commission are general and do not take account of the special features of the situation in Italy. In its view, the Commission has not proved the relevance of the ornithological data given therein as far as the species referred to in the application are concerned.

10

Lastly, the Italian Government points out that the regions are empowered to vary the dates for the opening and closing of the hunting season which are fixed by the national legislation, in order to take account of particular rearing cycles or migratory movements.

11

The Italian Government's argument accordingly raises three questions relating to matters of principle: the scope of the second and third sentences of Article 7(4) of the Directive, the nature of the scientific information which is satisfactory evidence as regards wild birds, and the question as to the extent to which the transposition of the aforementioned provision into national law may be ensured by the regional authorities of a Member State.

12

As far as the first question is concerned, that is to say the interpretation of the second and third sentences of Article 7(4) of the Directive, it appears from the documents before the Court that birds' reproductive cycles and migratory movements are subject to a degree of variability which, owing to meteorological circumstances, affects in particular the periods during which reproduction and migration take place. Thus, some young birds of a given species may still be in the nest or dependent on their parents for food after the end of the average reproduction period. Likewise, a number of birds of a given migratory species may begin their return journey to their rearing grounds comparatively early relative to average migratory flows.

13

The question is therefore whether a Member State may authorize hunting to take place as from the time when the majority of the young birds of a given species is no longer dependent on the parent birds for food and so long as most birds of a given migratory species are not yet flying over the territory of that Member State towards their rearing grounds, or whether the national legislature has to add to the habitual reproduction and breeding period and to the migration period an additional period designed to take account of the variations mentioned above.

14

In this connexion, it must be pointed out that the second and third sentences of Article 7(4) of the Directive are designed to secure a complete system of protection in the periods during which the survival of wild birds is particularly under threat. Consequently, protection against hunting activities cannot be confined to the majority of the birds of a given species, as determined by average reproductive cycles and migratory movements. It would be incompatible with the objectives of the Directive if, in situations characterized by prolonged dependence of the fledglings on the parents and early migration, part of the population of a given species should fall outside the protection laid down.

15

As far as the second question is concerned, that is to say the nature of the evidence to be adduced in this field and the relevance of the scientific publications cited by the Commission, it is common ground that the reference works in question are authoritative in the field of wild birds. As for the Italian Government's argument to the effect that the data submitted by the Commission do not relate specifically to the situation in Italy, it must be observed that where is no specific literature available relating to the territory of the Member State concerned the Commission may refer to ornithological works dealing with a general area of distribution which includes that Member State. Moreover, the Italian Government has not produced alternative scientific studies in order to challenge the data provided by the Commission.

16

As for the third question, which is concerned with whether the Directive may be regarded as having been implemented because it is open to the Italian regions to derogate from the hunting seasons laid down by the national legislation and, subject to certain conditions, to prohibit or restrict hunting, it must be held that national legislation which declares the hunting of certain species open in principle, without prejudice to provisions to the contrary laid down by the regional authorities, does not satisfy the requirements of protection laid down by the Directive.

17

Indeed, as appears from the Court's judgments of 8 July 1987 in Case 247/85 Commission v Belgium [1987] ECR 3029 and in Case 262/85 Commission v Italy [1987] ECR 3073, it would be contrary to the principle of legal safety if a Member State could rely on the regional authorities' power to issue regulations in order to justify national legislation which does not comply with the prohibitions laid down in a directive.

18

The Commission maintains that the national provisions authorizing the hunting of the coot, the moorhen, the mallard and the blackbird as from 18 August are incompatible with the second sentence of Article 7(4) of the Directive, on the ground that the reproduction and rearing period for those species has not yet finished on that date.

19

It must be held that, according to the scientific data provided by the Commission in respect of the above species, a significant fraction of fledglings of three of the species mentioned, namely young coots, moorhen and mallards, will possibly still be in the nest or dependent on their parents for food on 18 August. In contrast, it appears from the same data that young blackbirds become independent before that date.

20

It appears from the foregoing that, except as regards the blackbird, the Commission's first complaint must be upheld.

21

Secondly, the Commission considers that the national provisions authorizing the hunting until 28 February of 10 migratory species and until 10 March of nine other species which, during the months of January, February and March, cross Italy on their way back to their rearing grounds in central and northern Europe do not comply with the third sentence of Article 7(4) of the Directive.

22

For its part, the Italian Government argues that the Italian legislation adapted the hunting seasons to suit the requirements relating to the protection of migratory birds which are laid down in the International Convention for the Protection of Birds of 18 October 1950. It argues that in the absence of specific requirements in the Directive the requirements of the above Convention may be accepted as criteria for the adequate protection of migrant birds within the context of the Directive.

23

It is sufficient to observe that the Convention in question, which requires migrants to be protected particularly in March, cannot constitute a fundamental element for the interpretation of the Directive, which embodies stricter requirements in terms of protection.

24

It must be observed that, according to the scientific data provided by the Commission for the migratory species mentioned in the application and in particular the report of the Istituto Nazionale di Biologia della Selvaggina, a substantial fraction of those species may be flying over Italian territory as early as February, with the result that the Italian legislation does not comply with the aforementioned provision of the Directive.

25

As for the various species, it must however be held that non-compliance with the Directive has not been made out sufficiently as regards two of them, namely the redshank and the curlew, since it is stated in the aforementioned report that the redshank does not cross Italian territory until the first half of March and that the curlew crosses Italian territory in late March/early April.

26

It follows from the foregoing that, except as regards the redshank and the curlew, the Commission's second complaint must be upheld.

27

It must therefore be held that, by authorizing the hunting of various species of birds during the rearing season and the various stages of reproduction and of various migratory species during their return to their rearing grounds, the Italian Republic has failed to fulfil its obligations under Council Directive 79/409 of 2 April 1979 on the conservation of wild birds.

28

Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Italian Republic has failed in most of its submissions, it must be ordered to pay the costs.

On those grounds,

THE COURT

hereby: