1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 31 JULY 1985, THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION BEFORE THE COURT UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT, BY NOT ADOPTING WITHIN THE PRESCRIBED PERIOD 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 ), THE KINGDOM OF THE NETHERLANDS HAD FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY .
2 PURSUANT TO ARTICLE 18 OF THE DIRECTIVE, THE MEMBER STATES ARE TO ADOPT ALL THE LAWS, REGULATIONS AND ADMINISTRATIVE PROVISIONS NEEDED TO COMPLY WITH THE DIRECTIVE WITHIN A PERIOD OF TWO YEARS AS FROM NOTIFICATION THEREOF . THE DIRECTIVE WAS NOTIFIED ON 6 APRIL 1979 AND THEREFORE THAT PERIOD EXPIRED ON 6 APRIL 1981 .
3 HAVING EXAMINED THE RELEVANT NETHERLANDS LEGISLATION AND CONCLUDED THAT IT WAS NOT WHOLLY IN CONFORMITY WITH THE DIRECTIVE, THE COMMISSION INITIATED THE PROCEDURE PROVIDED FOR IN ARTICLE 169 OF THE TREATY . AFTER CALLING UPON THE KINGDOM OF THE NETHERLANDS TO SUBMIT ITS OBSERVATIONS, IT ISSUED A REASONED OPINION ON 16 OCTOBER 1984 . IN ITS REPLY TO THE OPINION, THE NETHERLANDS GOVERNMENT ANNOUNCED THAT IT WAS GOING TO ISSUE ADMINISTRATIVE RULES PROHIBITING THE USE OF THE HUNTING METHODS REFERRED TO IN ARTICLE 8 OF THE DIRECTIVE, PENDING THE ADOPTION OF A NEW VOGELWET ( LAW ON BIRDS ). THE AMENDING REGULATION, WHICH WAS PUBLISHED ON 6 MAY 1985, WAS NOT COMMUNICATED TO THE COMMISSION UNTIL SEPTEMBER 1985 . SCRUTINY OF THE DRAFT LAW BY THE NETHERLANDS PARLIAMENT HAS NOT YET BEEN COMPLETED . IN THE PRESENT ACTION FOR FAILURE TO FULFIL TREATY OBLIGATIONS, THE COMMISSION CRITICIZES THE NETHERLANDS LEGISLATION ON THE PROTECTION OF BIRDS ON FIVE COUNTS .
4 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR THE BACKGROUND TO THE DISPUTE, THE RELEVANT NETHERLANDS LEGISLATION, THE COURSE OF THE PROCEDURE AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR REFERRED TO HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
5 BEFORE THE COMPLAINTS MADE BY THE COMMISSION CONCERNING THE CONFORMITY OF THE NETHERLANDS LEGISLATION WITH THE DIRECTIVE ARE EXAMINED, IT MUST BE OBSERVED THAT THE TRANSPOSITION OF COMMUNITY LEGISLATION INTO NATIONAL LAW DOES NOT NECESSARILY REQUIRE THE PROVISIONS OF THAT LEGISLATION TO BE ENACTED IN PRECISELY THE SAME WORDS IN AN EXPRESS AND SPECIFIC ENACTMENT; A GENERAL LEGAL CONTEXT MAY BE SUFFICIENT IF IT IS SUFFICIENTLY CLEAR AND PRECISE IN ORDER TO ENSURE EFFECTIVELY THE FULL APPLICATION OF THE DIRECTIVE ( SEE THE JUDGMENT OF 23 MAY 1985 IN CASE 29/84 COMMISSION V GERMANY (( 1985 )) ECR 1661, AT P . 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 AS REGARDS THEIR RESPECTIVE TERRITORIES .
FIRST COMPLAINT : FAILURE TO TRANSPOSE THE CONCEPT OF "SERIOUS DAMAGE"
6 THE COMMISSION STATES THAT UNDER ARTICLE 2 OF THE VOGELWET, IN CONJUNCTION WITH ARTICLES 2 AND 3 OF THE VOGELBESLUIT ( ORDER ON BIRDS ), CERTAIN SPECIES OF BIRDS ARE DESIGNATED AS SPECIES NOT PROTECTED BY LAW, WITH A VIEW TO ENABLING DAMAGE TO AGRICULTURE, HORTICULTURE, FORESTRY, HUNTING AND FISHING TO BE AVOIDED, WHEREAS ARTICLE 9*(1 ) OF THE DIRECTIVE REFERS TO THE PREVENTION OF SERIOUS DAMAGE . THE NETHERLANDS LEGISLATION DOES NOT THEREFORE COMPLY WITH THE DIRECTIVE .
7 THE NETHERLANDS GOVERNMENT CLAIMS THAT THE EXCEPTIONS FROM THE PROVISIONS REGARDING THE PROTECTION OF BIRDS ALLOWED BY ARTICLE 2 OF THE VOGELWET RELATE ONLY TO CERTAIN SPECIES WHICH DO INDEED CAUSE SERIOUS DAMAGE, SO THAT THE REQUIREMENTS OF ARTICLE 9 OF THE DIRECTIVE ARE SATISFIED .
8 IN THAT CONNECTION, REFERENCE MUST BE MADE TO THE INTERPRETATION OF THE CONCEPT OF "SERIOUS DAMAGE" GIVEN IN THE COURT' S JUDGMENT OF 8 JULY 1987 IN CASE 247/85 COMMISSION V BELGIUM (( 1987 )) ECR ..., PARAGRAPH 56, ACCORDING TO WHICH ARTICLE 9*(1 ) OF THE DIRECTIVE IS NOT DESIGNED TO PREVENT THE THREAT OF MINOR DAMAGE AND THE FACT THAT A CERTAIN DEGREE OF DAMAGE IS REQUIRED FOR THAT DEROGATION FROM THE GENERAL SYSTEM OF PROTECTION ACCORDS WITH THE EXTENT OF THE PROTECTION SOUGHT BY THE DIRECTIVE .
9 IT MUST, HOWEVER, BE NOTED THAT THE COMMISSION HAS NOT MADE ANY SUBMISSIONS THAT MIGHT ESTABLISH THAT THE NETHERLANDS LEGISLATION ATTRIBUTES TO THE PERMITTED DEROGATIONS GREATER SCOPE THAN IS GIVEN TO THEM BY THE DIRECTIVE AS SO INTERPRETED .
10 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE FIRST COMPLAINT CANNOT BE UPHELD .
SECOND COMPLAINT : THE AUTHORIZATION PROVIDED FOR IN ARTICLE 10 OF THE VOGELWET
11 THE COMMISSION CONSIDERS THAT ARTICLE 10 OF THE VOGELWET, PROVIDING THAT PERMITS TO KILL OR CAPTURE BIRDS AND TO DISTURB THEIR NESTS ARE TO BE GRANTED AT THE REQUEST OF THE OWNERS OR USERS OF LAND OR WATER IN CASES WHERE PROTECTED BIRDS CAUSE OR ARE LIABLE TO CAUSE DAMAGE OR A NUISANCE, IS NOT IN CONFORMITY WITH ARTICLE 9*(1 ) OF THE DIRECTIVE .
12 THE NETHERLANDS GOVERNMENT CONTENDS THAT THE PERMITS PROVIDED FOR IN ARTICLE 10 OF THE VOGELWET ARE GRANTED ONLY WITH A VIEW TO PREVENTING SERIOUS DAMAGE AND ONLY TO THE EXTENT TO WHICH THEIR ISSUE IS NOT PRECLUDED BY THE CRITERIA FOR ALLOWING DEROGATIONS LAID DOWN IN ARTICLE 9*(1 ) OF THE DIRECTIVE . THE ADMINISTRATIVE PRACTICE OF THE COMPETENT AUTHORITIES IN ISSUING PERMITS IS RESTRICTIVE AND COMPLIES WITH THE REQUIREMENTS OF THAT PROVISION .
13 IN THAT CONNECTION, IT MUST BE OBSERVED THAT, WHILST IT IS TRUE THAT THE REQUIREMENT OF THE EXISTENCE OR RISK OF DAMAGE OR NUISANCE IS IN CONFORMITY WITH THE MEASURE OF PROTECTION SOUGHT BY THE DIRECTIVE MENTIONED IN CONNECTION WITH THE FIRST COMPLAINT IN THESE PROCEEDINGS, IT MUST NEVERTHELESS BE POINTED OUT THAT THE WORDING OF ARTICLE 10 OF THE VOGELWET, UNLIKE ARTICLE 9*(1 ) OF THE DIRECTIVE, DOES NOT MAKE THE GRANT OF PERMITS CONDITIONAL UPON THE ABSENCE OF ANY OTHER SATISFACTORY SOLUTION .
14 THE SECOND COMPLAINT MUST THEREFORE BE UPHELD .
THIRD COMPLAINT : CAGE BIRDS AND STUFFED PROTECTED BIRDS
15 THE COMMISSION POINTS OUT THAT THE LIST OF BIRDS THAT, PURSUANT TO ARTICLES 9 AND 10 OF THE VOGELBESLUIT WHICH APPLY ARTICLES 11 AND 12 OF THE VOGELWET, ARE NOT PROTECTED AS FAR AS CAPTURE FOR CAGING OR HUNTING ARE CONCERNED, IS NOT IDENTICAL TO THE LIST OF BIRDS REFERRED TO IN ARTICLE 6*(2 ) AND ( 3 ) OF THE DIRECTIVE AND CONTAINED IN ANNEX III . MOREOVER, THE COMMISSION CONSIDERS THAT ARTICLES 15, 15 BIS AND 16 OF THE VOGELWET, WHICH ALLOW PERMITS TO BE ISSUED FOR TRADE IN PROTECTED DEAD AND STUFFED BIRDS, ARE NOT IN CONFORMITY WITH THE CRITERIA LAID DOWN IN ARTICLE 9*(1 ) OF THE DIRECTIVE .
16 THE NETHERLANDS GOVERNMENT STATES IN THE FIRST PLACE THAT NO PERMIT HAS BEEN GRANTED FOR MORE THAN 45 YEARS FOR WILD BIRDS TO BE CAPTURED FOR CAGING OR FOR TRADE IN SUCH BIRDS . THE WAY IN WHICH ARTICLES 11 AND 12 OF THE VOGELWET ARE APPLIED IS THEREFORE COMPATIBLE WITH ARTICLE 6*(2 ) AND ( 3 ) OF THE DIRECTIVE . ON THE SECOND POINT, THE NETHERLANDS GOVERNMENT CONTENDS THAT THE ONLY BIRDS WHICH MAY BE STUFFED ARE BIRDS WHICH HAVE MANIFESTLY DIED FROM NATURAL CAUSES OR DIED WITHOUT THE KNOWLEDGE OF THE APPLICANT FOR THE PERMIT AND WITHOUT HIS BEING RESPONSIBLE FOR THEIR DEATH .
17 AS REGARDS THE FIRST POINT, IT MUST BE STATED THAT THE FACT THAT THE LIST OF BIRDS IN ARTICLES 9 AND 10 OF THE VOGELBESLUIT IS NOT IDENTICAL TO THE LIST IN ANNEX III TO THE DIRECTIVE CONSTITUTES AN INADEQUATE TRANSPOSITION OF ARTICLE 6*(2 ) AND ( 3 ) OF THE DIRECTIVE INTO NETHERLANDS LAW . AS REGARDS THE SECOND POINT, IT MUST BE STATED THAT THE DEROGATIONS CONCERNING THE PROTECTION OF BIRDS ALLOWED BY ARTICLES 15, 15 BIS AND 16 OF THE VOGELWET CAN BE JUSTIFIED ONLY ON THE BASIS OF THE CRITERIA LAID DOWN IN ARTICLE 9*(1 ) OF THE DIRECTIVE . HOWEVER, THOSE CRITERIA ARE NOT SATISFIED IN THIS CASE .
18 ALTHOUGH THE ADMINISTRATIVE PRACTICE FOLLOWED IN THE NETHERLANDS APPEARS IN BOTH CASES TO BE IN CONFORMITY WITH THE PROVISIONS OF THE DIRECTIVE - A FACT WHICH, MOREOVER, IS ACKNOWLEDGED BY THE COMMISSION - IT MUST BE REMEMBERED THAT THE COURT HAS HELD THAT "MERE ADMINISTRATIVE PRACTICES, WHICH BY THEIR NATURE ARE ALTERABLE AT WILL BY THE AUTHORITIES AND ARE NOT GIVEN THE APPROPRIATE PUBLICITY, CANNOT BE REGARDED AS CONSTITUTING THE PROPER FULFILMENT OF OBLIGATIONS UNDER THE TREATY" ( JUDGMENT OF 15 OCTOBER 1986 IN CASE 168/85 COMMISSION V ITALY (( 1986 )) ECR 2945 ).
19 THE THIRD COMPLAINT MUST THEREFORE BE UPHELD .
FOURTH COMPLAINT : THE TAKING OF EGGS AND THE DISTURBING OF NESTS
20 THE COMMISSION CONSIDERS THAT ARTICLES 17, 18 AND 19 OF THE VOGELWET CONCERNING THE COLLECTION OF EGGS OF CERTAIN BIRDS DO NOT TRANSPOSE THE CRITERIA FOR ALLOWING DEROGATIONS LAID DOWN IN ARTICLE 9 OF THE DIRECTIVE . THE COMMISSION CRITICIZES, ON THE SAME GROUND, ARTICLE 20 OF THE VOGELWET WHICH ALLOWS NESTS LOCATED IN OR AGAINST BUILDINGS OR COURTYARDS TO BE DISTURBED .
21 WITH RESPECT TO ARTICLE 17 OF THE VOGELWET, THE NETHERLANDS GOVERNMENT EXPLAINS THAT ONLY THE TAKING OF EGGS OF THE LAPWING IS AUTHORIZED, FOR A LIMITED PERIOD . IN PRACTICE, THAT EXCEPTION RELATES ONLY TO THE AREA OF FRIESLAND WHERE THE COLLECTING OF LAPWING EGGS IS A HISTORICAL AND CULTURAL TRADITION . AS REGARDS ARTICLE 18 OF THE VOGELWET, ACCORDING TO WHICH PERMITS MAY BE GRANTED FOR SEEKING AND COLLECTING THE EGGS OF CERTAIN BIRDS, THE NETHERLANDS GOVERNMENT CONTENDS THAT THE PERMITS ARE ISSUED ONLY IN ORDER TO REMEDY DAMAGE CAUSED BY GULLS IN NATURE RESERVES . CONSEQUENTLY, ARTICLE 19 OF THE VOGELWET, WHICH AUTHORIZES TRADE IN LAPWINGS' AND GULLS' EGGS, IS ALSO IN CONFORMITY WITH ARTICLE 9 OF THE DIRECTIVE . AS REGARDS ARTICLE 20 OF THE VOGELWET, THE NETHERLANDS GOVERNMENT STATES THAT THE REMOVAL OF NESTS IS PERMITTED ONLY IF THEY CONSTITUTE A NUISANCE OR CAUSE DAMAGE .
22 IT MUST BE OBSERVED FIRST OF ALL THAT THE MEMBER STATES ARE EMPOWERED TO DEROGATE FROM THE PROHIBITIONS CONCERNING THE COLLECTION OF EGGS AND THE DISTURBING OF NESTS ( ARTICLES 5 AND 6 OF THE DIRECTIVE ) ONLY UNDER THE CONDITIONS LAID DOWN IN ARTICLE 9 OF THE DIRECTIVE . HOWEVER, THE PERMITS FOR SUCH ACTIVITIES PROVIDED FOR BY THE NETHERLANDS LEGISLATION CANNOT BE JUSTIFIED BY REFERENCE TO THE CRITERIA FOR DEROGATIONS LAID DOWN IN THAT ARTICLE .
23 AS REGARDS ARTICLE 17 OF THE VOGELWET, IT MUST BE OBSERVED THAT THAT PROVISION CONTAINS NO REFERENCE TO THE GROUNDS FOR DEROGATIONS SET OUT IN ARTICLE 9*(1 ) OF THE DIRECTIVE . AS THE COURT HAS POINTED OUT IN RELATION TO THE THIRD COMPLAINT, THE FACT THAT ADMINISTRATIVE PRACTICE IN THE NETHERLANDS APPEARS TO BE IN CONFORMITY WITH THE REQUIREMENTS OF THE COMMUNITY LEGISLATION CANNOT BE REGARDED AS A SATISFACTORY TRANSPOSITION OF THE CRITERION LAID DOWN IN ARTICLE 9*(1)*(C ) OF THE DIRECTIVE, WHICH ALLOWS THE CAPTURE, KEEPING OR OTHER JUDICIOUS USE OF CERTAIN BIRDS IN SMALL NUMBERS ONLY UNDER STRICTLY SUPERVISED CONDITIONS AND ON A SELECTIVE BASIS .
24 AS REGARDS ARTICLES 18 AND 19 OF THE VOGELWET, IT MUST ALSO BE CONCLUDED THAT NONE OF THE GROUNDS FOR DEROGATIONS SET OUT IN ARTICLE 9*(1 ) OF THE DIRECTIVE APPEARS IN THOSE PROVISIONS .
25 AS REGARDS ARTICLE 20 OF THE VOGELWET, IT MUST BE STATED THAT THE EXCEPTION TO THE PROTECTION OF BIRDS WHICH IT CONTAINS IS LIKEWISE NOT FOUNDED ON ANY OF THE CRITERIA LAID DOWN IN ARTICLE 9 OF THE DIRECTIVE . MOREOVER, ARTICLE 20 OF THE VOGELWET TAKES NO ACCOUNT OF THE FACT THAT ANY DEROGATION IS CONDITIONAL UPON THERE BEING NO OTHER SATISFACTORY SOLUTION . THE FACT THAT ADMINISTRATIVE PRACTICE IN THE NETHERLANDS APPEARS TO BE IN CONFORMITY WITH THE CRITERIA LAID DOWN IN ARTICLE 9 OF THE DIRECTIVE - A SITUATION WHICH, MOREOVER, THE COMMISSION ACKNOWLEDGES - IS NOT SUFFICIENT TO ENSURE ADEQUATE TRANSPOSITION OF THE DIRECTIVE INTO NATIONAL LAW .
26 THE FOURTH COMPLAINT MUST THEREFORE BE UPHELD .
FIFTH COMPLAINT : MEANS OF CAPTURE
27 THE COMMISSION CRITICIZES THE KINGDOM OF THE NETHERLANDS FOR NOT MENTIONING IN ARTICLE 23 OF THE VOGELWET OR IN ARTICLE 14 OF THE VOGELBESLUIT ALL THE METHODS OF CAPTURE WHICH ARE PROHIBITED BY VIRTUE OF ARTICLE 8 AND ANNEX IV*(A ) TO THE DIRECTIVE, AND FOR GRANTING EXCEPTIONS, IN ARTICLES 15, 16 AND 17 OF THE VOGELBESLUIT, TO THE PROHIBITION LAID DOWN IN ARTICLE 8 OF THE DIRECTIVE ON THE USE OF CERTAIN MEANS OF CAPTURE WHICH ARE INCOMPATIBLE WITH ARTICLE 9*(1 ) OF THE DIRECTIVE .
28 WHILST IT IS TRUE THAT AN AMENDMENT TO ARTICLE 14 OF THE VOGELBESLUIT HAS BROUGHT THE NETHERLANDS LEGISLATION INTO LINE WITH ANNEX IV*(A ) TO THE DIRECTIVE ( LIST OF PROHIBITED MEANS OF CAPTURE ), IT MUST NEVERTHELESS BE POINTED OUT THAT THE SUBJECT-MATTER OF AN ACTION BROUGHT UNDER ARTICLE 169 IS DEFINED BY THE COMMISSION' S REASONED OPINION ( JUDGMENT OF 27 MAY 1981 IN JOINED CASES 142 AND 143/80 AMMINISTRAZIONE DELLE FINANZE DELLO STATO V ESSEVI AND SALENGO (( 1981 )) ECR 1413 ). SINCE THE COMMISSION HAS NOT WITHDRAWN ITS COMPLAINT, IT MUST BE DECLARED WELL FOUNDED .
29 THE FIFTH COMPLAINT MUST THEREFORE BE UPHELD .
30 IT MUST THEREFORE BE STATED 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 THE NETHERLANDS HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY .
COSTS
31 UNDER ARTICLE 69*(2 ) OF THE RULES OF PROCEDURE, AN UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS, IF THEY ARE ASKED FOR . SINCE THE DEFENDANT HAS ESSENTIALLY FAILED IN ITS SUBMISSIONS, 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 THE NETHERLANDS HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY;
( 2 ) ORDERS THE KINGDOM OF THE NETHERLANDS TO PAY THE COSTS .
