Judgment of the Court (Third Chamber) of 10 September 2009 – Commission v Belgium

(Case C‑100/08)

Failure of a Member State to fulfil its obligations – Articles 28 EC and 30 EC –Protection of species of wild fauna and flora – Legislation on the keeping and marketing of birds born and bred in captivity legally placed on the market in other Member States

1.                     Free movement of goods – Quantitative restrictions – Measures having equivalent effect – Meaning (Art. 28 EC) (see paras 81-82)

2.                     Free movement of goods – Quantitative restrictions – Measures having equivalent effect (Arts 28 EC and 30 EC; Council Regulation No 338/97; Commission Regulation No 865/2006) (see paras 84-88, 91-93, 96-103, 110-113)

3.                     Environment – Conservation of wild birds – Directive 79/409 – Scope (Council Directive 79/409) (see para. 106)

Re:

Operative part

The Court:

–        by making the import, keeping and sale of specimens of birds born and bred in captivity legally placed on the market in other Member States subject to restrictive conditions that require the market participants concerned to alter the marking of the birds so as to satisfy the conditions specifically required by the Belgium legislation, and by failing to recognise the marking accepted in other Member States or certificates issued in accordance with Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein; and

–        by denying traders the opportunity to obtain exemptions from the prohibition of keeping indigenous European birds legally placed on the market in other Member States,

the Kingdom of Belgium has failed to fulfil its obligations under Article 28 EC