OPINION OF ADVOCATE GENERAL
GEELHOED
delivered on 9 September 2004(1)

Case C-79/03

Commission of the European Communities
v
Kingdom of Spain

(Failure to comply with a directive – Articles 8 and 9 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds – Toleration by the Spanish authorities of the capture, in the Valencia region, of four species of thrush (Turdus philomelos, Turdus pilaris, Turdus iliacus and Turdus viscivorus) by means of the ‘parany’ (using limed twigs))

I – Introduction

1. This case concerns an action brought by the Commission against the Kingdom of Spain for infringing various provisions of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (2) (hereinafter ‘the Directive’ or ‘the bird directive’). As will be evident from the following, the Commission and the Spanish Government hold different views on this subject.

2. More specifically, the case concerns the application and interpretation of Articles 8 and 9 of the bird directive in the assessment of the admissibility of a traditional hunting method for the capture of a number of species of thrush in Spain’s Valencia region: the ‘parany’.

3. A ‘parany’ is a device used to capture birds. It consists of a structure of limed twigs which is installed in a tree and to which the hunted birds are lured with decoys. As soon as a bird comes into contact with a limed-twig, the lime sticks to its feathers. The bird loses its ability to fly, falls to the ground and is there captured by the user of the device.

II – The relevant legislation

4. Article 8 of the directive stipulates that, in respect of the hunting, capture or killing of birds under the directive, Member States must prohibit the use of all means, arrangements or methods used for the large-scale or non-selective capture or killing of birds or capable of causing the local disappearance of a species, in particular the use of those listed in Annex IV(a).

5. Annex IV(a) refers in particular to lime and explosives.

6. According to Article 9(1) of the bird directive, Member States may derogate from the provisions of Articles 5, 6, 7 and 8, where there is no other satisfactory solution, for the reasons given under (a) to (c). More specifically, an exception may be made (under (a)) ‘to prevent serious damage to crops, livestock, forests, fisheries and water’ and (under (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’.

7. The capture of thrushes with the aid of a parany is governed in the Valencia region by Decree 135/2000 of 12 September 2000 of the Government of Valencia, which lays down the conditions and formalities relating to the issue of hunting permits. (3) The decree specifies:

–: the requirements which the parany must satisfy (the distance between the limed twigs, the properties of the lime to be used, etc.);

–: the species of bird whose capture is permitted: song-thrush (Turdus philomelos), fieldfare (Turdus pilaris), redwing (Turdus iliacus) and mistle‑thrush (Turdus viscivorus);

–: the hunting season and the hours of the day when hunting is permitted;

–: the maximum number which may be captured per device.

III – The points of difference

8. The Commission contends that capturing birds with paranys is a non-selective method of hunting within the meaning of Annex IV(a) to Directive 79/409. It is therefore prohibited under Article 8 of the directive. This method, in which limed twigs are used, does not, after all, adequately ensure that birds of one of the protected species referred to in Annex I to the directive or other protected migratory birds or species the hunting of which is prohibited will not be captured. The Commission does not consider the special conditions which paranys must now satisfy pursuant to Decree 135/2000 to be sufficient for the hunting of birds with paranys to be regarded as selective.

9. The Commission also takes the view that the specific derogations for which Article 9(1)(a) and (c) provide cannot be relied on for this method to be used.

10. The third indent of Article 9(1)(a) of the directive cannot be relied on, according to the Commission. In the first place, the Spanish Government has failed to show that there is ‘no other satisfactory solution’ for preventing the serious damage which it alleges is done to vineyards and olive groves. According to the Commission, there are appropriate alternatives for protecting crops against the damage caused by the species of thrush in question, such as the use of auditory deterrents and guns. Such alternatives are also used in other Spanish regions where olives and/or grapes are grown, such as Andalusia and Castilla-La Mancha. In those regions capturing birds with the aid of limed twigs is no longer permitted, and the aforementioned alternative methods are clearly satisfactory.

11. Secondly, the Commission questions the scale of the damage alleged by the Spanish Government, maintaining that both the assumed populations of the species of thrush in question and their daily intake of food of vegetable origin have been greatly overestimated. Furthermore, the Commission argues, the geographical concentrations of the permits issued for the use of the parany and those of the vineyards and olive groves do not entirely coincide.

12. Nor is the reliance on Article 9(1)(c) of the directive justified. This derogation may be relied on only in the case of the selective capture of birds ‘in small numbers under strictly supervised conditions’.

13. The Commission maintains that even under the conditions laid down in Decree 135/2000 hunting with paranys is not selective and that the number of permits multiplied by the maximum number of birds which each permit-holder may capture produces a total capture quota which cannot possibly be regarded as ‘small’ within the meaning of Article 9(1)(c) of the directive. Even the actual number of birds alleged by the Spanish Government to have been caught since the decree entered into force exceeds that limit.

14. The Spanish Government’s defence focuses on three elements:

–: the selectivity of the method of capture;

–: the absence of appropriate alternative methods of capture;

–: the criterion of ‘small numbers’ in Article 9(1)(c) of the directive.

15. The Spanish Government takes the view that the capture of birds with the aid of paranys, currently governed by Decree 135/2000, is selective. This method of capture is therefore consistent with the directive and does not fall within the scope of Article 8 in conjunction with Annex IV(a) to the directive. Although the preamble to Decree 135/2000 states that lime as such is a non-selective means of hunting, the situation changes if it is used in accordance with the requirements and restrictions laid down in the decree. In that context the Spanish Government emphasises a number of requirements showing that hunting with paranys is now selective: the distance between and the position of the limed twigs, the specifications to be met by the lime, the use of decoys of the same species as the birds which may be hunted and the minimum height of the trees in which the parany is installed.

16. The alternatives referred to by the Commission for preventing damage to crops do not, according to the Spanish Government, provide a satisfactory solution. The use of auditory deterrents is expensive, or too expensive, and, given the risk of forest fires, too risky. The use of guns would entail an increase in the number of hunting permits and an extension of the hunting season. The resulting pressure of hunting might have implications for the natural balance in the populations of other migratory birds which may be hunted.

17. Referring to the Court’s case-law, (4) which states that ‘the criterion of small quantities is not an absolute criterion but rather refers to the maintenance of the level of the total population and to the reproductive situation of the species concerned’, the Spanish Government claims that the Commission has failed to demonstrate that the rules adopted by the Valencia region are inconsistent with the criteria laid down in Article 9(1)(c).

IV – Assessment

18. This case particularly concerns the interpretation and application of Articles 8 and 9 of the bird directive. Article 8(1) prohibits the use of all means, arrangements or methods for the large-scale or non-selective capture or killing of birds and in particular the use of the means listed in Annex IV(a), which include ‘lime’. Article 9 provides for a number of accurately defined derogations from the provisions inter alia of Article 8.

19. To begin with, I regard as untenable the Spanish Government’s argument that the parany, as governed by Decree 135/2000, is not prohibited by Article 8(1).

20. That provision requires the Member States to prohibit the use of lime as a means of capturing or killing birds. Taken in conjunction with Annex IV(a), it does not provide any basis whatever for contending that the use of lime as part of an allegedly more selective method of capture is not covered by the prohibition laid down therein.

21. Consequently, the use of that means of capture is permitted only in the case of a derogation permitted pursuant to Article 9 of the directive. In the light of that provision, the tenability of the Spanish Government’s selectivity argument must therefore be examined more closely.

22. For the use of the parany as a method of capture the Spanish Government relies on two derogations:

–: Article 9(1)(a): the prevention of serious damage to crops;

–: Article 9(1)(c) of the directive: the capture, keeping or other judicious use of certain birds in small numbers under strictly supervised conditions and on a selective basis.

23. From the text of Article 9 of the directive, as interpreted by the Court, (5) it can be inferred that three conditions must be met for there to be a derogation from Article 8: the derogation must be limited to cases where there is no other satisfactory solution; the derogation must be based on at least one of the reasons listed exhaustively in Article 9(1)(a), (b) and (c); and the derogation must satisfy the formal requirements clearly defined in Article 9(2). The last of these conditions does not, however, play any part in this case.

24. To rely on the third indent of Article 9(1)(a) – the prevention of serious damage to crops – the Spanish Government must show, respectively, that it is in fact to be feared that the four species of thrush referred to in Decree 135/2000 will cause serious damage to crops, that that damage cannot be prevented by ordinary methods and means permitted by the directive and, finally, that hunting with the parany is a reasonable alternative.

25. The Spanish Government argues that the species of thrush referred to visit the Valencia region in large numbers on their migratory flight and cause damage primarily to the vineyards and olive groves there. The Spanish Government and the Commission also differ widely in their views on the numbers of birds and on the nature and scale of the damage. The figure of 20 million birds mentioned by the Spanish Government in its pleading has, moreover, been reduced by the Commission to 5 million without contradiction. The data which the Spanish Government has presented on the daily consumption of olives per bird are also drastically reduced in the expert reports cited by the Commission (the Spanish Government’s calculations have put the amount of olives eaten by thrushes each day at some 30 grams, while the Commission’s sources have them eating no more than between about 6 and 12 grams per day). Finally, the Commission claims that thrushes mainly eat olives which have fallen from the tree and are not suitable for consumption or processing.

26. On the basis of this information, on which the parties are very largely agreed, some damage to crops due to the species of thrush at issue seems undeniable. However, what is far less certain is whether the facts presented by the Spanish Government support the conclusion that ‘serious damage’, as referred to in the third indent of Article 9(1)(a) of the directive, occurs.

27. Even if it were assumed that ‘serious damage’ was indeed being done, it would not be enough for the derogation provided for in Article 9 to be relied on. For that it would also have to be shown, as the first sentence of Article 9 makes absolutely clear, that there was ‘no other satisfactory solution’ for preventing and limiting damage. A reasonable case would also have to be made for arguing that the proposed exceptional method of capture was an appropriate solution.

28. The Spanish Government has, however, been unable to show that methods of hunting, capture and deterrence which are generally permitted do not represent a solution for preventing or limiting the alleged damage.

29. Other regions where olives and grapes are grown extensively and through which thrushes pass in large numbers, such as Andalusia and Castilla-La Mancha, are able to make do with such ordinary methods of capture as hunting with guns and such methods of deterrence as bird-scarers.

30. The reasons given for bird-scarers being unable to provide a solution in the Valencia region, such as the cost involved and the danger of forest fires, must also apply mutatis mutandis to areas where capture with paranys is not permitted. The Spanish Government has been unable to show why a method which is accepted and clearly adequate elsewhere could not provide a solution in the Valencia region.

31. The arguments advanced by the Spanish Government against hunting with guns, namely that that method would exert too much pressure on other species which can be hunted and that the hunters in the Valencia region are less disciplined, are equally unconvincing. Provided that it is done in accordance with the law, hunting with guns is an eminently selective method of capture. The alleged lack of discipline might, if that argument is indeed correct, be at best a reason for prohibiting that method of hunting completely. There is no sign of this in the file. The Spanish Government does not, moreover, say why capture with the aid of the parany proceeds in a disciplined manner.

32. Nor has the Spanish Government been able to show convincingly why capture with paranys, which is largely confined to the part of the Valencia region where the growing of grapes and olives is not concentrated, might reduce the alleged damage to those crops. It is apparent, for example, that 80% of paranys are used in the province of Castellon, that 69% of them are installed in areas where no olives or grapes are grown and that they are located either in areas which are largely unfarmed (11.7%) or in areas where there are only orange groves. Although the Spanish Government defends itself by claiming that Valencia covers a large area and the paranys are meant to prevent damage to the olive groves throughout Valencia, this is not, as the Commission has rightly explained, a plausible argument. Thrushes may be captured only for a certain period, which coincides with their migration. This means that the paranys are able to protect only the agricultural areas in which they are located. Thus the ground for the required causal link between the damage and the need to use a method of capture which is prohibited under Article 8(1) in conjunction with Annex IV(a) does not apply.

33. The Spanish Government’s reliance on the derogation for which Article 9(1)(c) of the directive provides prompts two preliminary comments.

34. Firstly, it can be inferred from the wording and structure of Article 9(1) that reliance on the derogations listed under (a) to (c) always presupposes that the criterion ‘where there is no other satisfactory solution’ is met.

35. It is not clear for what problem requiring a solution the Spanish Government is relying on Article 9(1)(c). Implicitly, it seems to regard the maintenance of a traditional and culturally specific method of capture in the Valencia region as its reason for relying on that derogation. It is not, however, evident either from the preamble to the directive or from the text of the directive that the aim of the directive is to protect traditional methods of capture which are inconsistent with Article 8(1) in conjunction with Annex IV(a).

36. Secondly, the Spanish Government’s reliance on the derogation for which Article 9(1)(c) provides makes its arguments for permitting the capture of birds with the aid of paranys inherently contradictory. Either, in this case, crops suffer serious damage requiring the use of exceptional methods of capture, which, if they are to be effective, cannot be restricted to the ‘capture of birds in small numbers’, or the aim is to permit a traditional method of capture which, in view of the highly restrictive conditions imposed by Article 9(1)(c) of the directive, cannot possibly be effective in preventing or limiting serious damage to crops.

37. If the Court were to interpret Article 9(1)(c) more or less in line with paragraphs 27 and 28 of the grounds of its judgment in Case 252/85 (6) as meaning that the maintenance of a traditional method of capture was in itself sufficient a reason – in paragraph 35 I have already remarked that neither the wording nor the structure of Article 9 supports such a view – it would have to be considered whether the use of the parany governed by Decree 135/2000 as a method of capture satisfied the requirements of ‘small numbers’ and selectivity in this case.

38. The Spanish Government claims that, as a result of the requirements laid down in the aforementioned decree, the method of capture using the parany provides adequate guarantees of selectivity. The greater distance between the limed twigs, their positioning, the use of types of lime which can be washed off and the use only of thrushes as decoys ensure, it argues, that the vast majority of birds captured are indeed song-thrushes, fieldfares, redwings and mistle-thrushes. Any other birds are released after treatment.

39. In the light of the studies which the Commission has cited I do not consider the Spanish Government’s position tenable. The use of limed twigs in paranys is, as such, an indiscriminate method of capture since those who use this method cannot prevent birds other than the four species of thrush in respect of which its use is permitted from coming into contact with the limed twigs. The Commission has claimed without contradiction that paranys lead to the capture of birds other than the four species in question, including such insect-eaters as the willow warbler, the robin, the black redstart and many other species. In addition, various species of owl, such as the barn owl and the little owl, fall victim to this method of capture when it is used in the evening, at night and in the early morning. It is also possible that these nocturnal birds of prey follow other birds attracted by the call of the decoys.

40. The fact that the decree requires birds other than the four species of thrush which are unintentionally captured with a parany to be cleaned and then released does not in itself make the method of capture selective. It has already been pointed out above that the use of limed twigs is by definition indiscriminate. Although an attempt can be made to meet this objection by imposing stringent requirements, whether they will have the intended effect will depend, firstly, on how scrupulously they are observed by the permit-holder and, secondly, on whether or not the birds unintentionally captured suffer any damage. There is also uncertainty about the chances of survival for the mostly small, vulnerable insect-eaters which are released after being ‘treated’.

41. The method of capture using paranys governed by Decree 135/2000 similarly fails to meet the requirement that small numbers be involved. According to a calculation submitted by the Commission, the permits issued for the use of paranys authorise a total catch of 429 600 specimens (2 864 permits multiplied by the number of specimens, 150, which may be captured per parany per season). This number of specimens which may be lawfully captured is, to my mind, decisive when it comes to determining whether small numbers are involved. Whether fewer specimens than the number permitted are captured in a given season is irrelevant since the possible damage to the population should be gauged against the scale of the permissible derogation from the prohibition required by Article 8(1) in conjunction with Annex IV(a).

42. In Case 252/85 (cited) the Court rightly argued that the answer to the question whether ‘small numbers’ are involved should not be based on absolute figures, but that the maintenance of the relevant total population and the reproductive situation of the species concerned must be taken into account.

43. As the Commission has claimed, without being contradicted by the Spanish Government, the relevant population numbers some 5 million specimens. The 429 600 specimens for whose capture permits have been issued are equivalent to something more than 8.5% of that figure. In purely proportional terms, it is difficult to call that number ‘small’.

44. In its Second report on the application of Directive 79/409/EEC on the conservation of wild birds, (7) which was published in 1993, the Commission established a method of determining what may be regarded as a small number for the purposes of Article 9(1)(c). Of importance for the maintenance or stability of a given population are the reproductive situation, total annual mortality due to natural causes and – for species which may be hunted – hunting by ordinary methods. If at a given balance between reproduction and annual mortality the size of a population remains largely stable, permitting a special method of capture for ‘small numbers’ by way of exception must not upset that balance.

45. On the basis of ornithological studies the Commission concluded in the aforementioned report that in the case of species which may be hunted a special toll of 1% for ordinary annual mortality within a population might still be regarded as a small number within the meaning of Article 9(1)(c) of the directive. If that upper limit was observed, the stability of the species would not be jeopardised.

46. For the species of thrush which may be captured with the aid of paranys under Decree 135/2000 the Commission calculated that 1% of annual mortality in the population concerned would be equivalent to 83 750 specimens. Even allowing for all the margins of uncertainty inherent in such calculations, it must be acknowledged that there is so great a difference between the number of specimens which may be killed under the permits issued – 429 600 – and the number resulting from the Commission’s calculations – 83 750 – that the Spanish Government’s contention that only a ‘small number’ is involved is untenable.

47. In view of the foregoing I maintain that the Spanish Government may not rely on the derogation provided for in Article 9(1)(c) of the directive to permit the capture of thrushes with the aid of paranys in the Valencia region. That method of capture is not in itself sufficiently selective, and it concerns the capture of a number of birds which greatly exceeds the norm of ‘small numbers’.

V – Conclusion

48. In view of the foregoing I propose that the Court should:

–: declare that the Kingdom of Spain has failed to fulfil its obligations under Articles 8(1) and 9(1) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds;

–: order the Kingdom of Spain to bear the costs.

1 –: Original language: Dutch.

2 –: OJ 1979 L 103, p. 1.

3 –: This decree was annulled by the judgment of the Tribunal Superior de Justicia of 26 September 2001. An appeal against this ruling has been lodged with the court of cassation.

4 –: Case 252/85 Commission v France [1988] ECR 2243.

5 –: See, for example, Case 262/85 Commission v Italy [1987] ECR 3073.

6 –: Cited in footnote 4.

7 –: COM(93)572 fin., 24 November 1993.