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Case:
CE., Ass., Case Ligue pour la Protection des Oiseaux et Autres
Date:
25 January 2002
Translated by:
J T Brown
Copyright:
Professor B. S. Markesinis

CE., Ass.,
Case Ligue pour la Protection des Oiseaux et Autres

25 January 2002

Concerning the lawfulness of the Decree under attack :

Considering that, as drafted in Article 24 of the Law of 26 July 2000 concerning hunting, Article L.224-2 of the Rural Code, whose provisions now appear as Article 424-2 of the Code of the Environment, provides that: “ No person may hunt outside the periods fixed for hunting by the administrative authority./ Birds may be hunted neither during the nesting period nor during the different stages of reproduction and dependence. Further, migrant birds may not be hunted during their return journey to their nesting place./ However, derogations may be granted in order to permit, in strictly controlled conditions and in a selective manner, the capture, detention or any other judicious exploitation of small quantities of certain land or water migrants, in conformity with the provisions of Article 225-5./ A Decree of the Conseil d’Etat shall determine the means by which this provision will be applied;

Considering that (i) Article 1 of the Decree under attack, issued in order to apply the provisions of the two first paragraphs of the said Article L. 224-2 of the Rural Code, modifies the dates set out in of Article R. 224-5 of the Rural Code between which hunting of water game and migrant birds may be permitted; (ii) it completes such Article R. 224-5 with a II drafted as follows: “The Minister in Charge of Hunting may fix, by an order issued after he has received an opinion from the National Council for Hunting and Animal Life, extensive areas for nesting of ducks, rallidae and coots”; (ii) Article 2 of the Decree under attack replaces the provisions of Article R. 224-6 of the Rural Code by the following provisions: “The derogations mentioned in the fifth paragraph of Article L.224-2 may be granted by Prefects for the purpose of allowing the capture, the detention or any other form of judicious exploitation, in small quantities, of geese, wood pigeons and thrushes, until 20 February./ An order issued by the Minister in Charge of Hunting after receiving an opinion from the National Council for Hunting and Animal Life, shall fix the conditions in which such sampling (“prélèvements”) may be authorised and the means of control to be applied. The Minister shall also determine, for each species, and after having received opinions from the National Hunting Federation and the National Service for Hunting and Animal Life, the maximum number of birds which may be sampled in this way./ Prefects shall determine, as set out in Article L. 225-5, the maximum number of birds which may be sampled by the beneficiaries of the derogation”.

Concerning the arguments brought against the provisions relating to the dates of opening and closing of hunting water game and migrant birds introduced by Article 1 of the Decree of 1 August 2000:

Given that (i) in order to evaluate the lawfulness of the provisions set out in this Article relating to the opening and closing dates for hunting migrant birds and water game, it is necessary to refer to the interpretation of Article 7 (4) of the Directive of 7 April 1979 handed down by the Court of Justice of the European Communities, particularly in its judgements of 19 January 1994 and 7 December 2000; and (ii) it follows from this, among others things, that the protection laid down for these species, during both (a) the nesting period and the period of reproduction and dependence, and (b) the homeward journey of migrant species towards their nesting places, must be complete, and must exclude risks of confusion between species, and that the fixing of dates which are spaced out on the basis of different species is lawful only if it can be shown, taking into account scientific and technical data, that such spacing out is compatible with that aim of complete protection;

Concerning the arguments of the League for the Protection of Birds, the Association for the Protection of Wild Animals, and The Assembly of Opponents of Hunting:

Given firstly that (i) pursuant to the provisions of Article 1 of the Decree under attack, the opening of hunting water game and migrant birds may be spaced out, according to areas and species, between the 10 August and the date on which general hunting is open, which, by virtue of Article R. 224-4 of the Rural Code, is fixed each year between the first and fourth Sundays of September; (ii) in the light of the scientific data arising from the contents of the file before the Court it must be concluded the hunting ducks rallidae and coots between 10 August and 1 September corresponds to a period when the species in question have not completed their period of reproduction and dependence or can be confused with species which are still vulnerable; (iii) this being so, the provisions fixing 10 August, in respect of regions other than those of heavy nesting, for the opening of hunting ducks, rallidae and coots have been issued without taking into account the aims of Article 7(4) of the Directive of 2 April 1979, (iv) opening on 10 August in respect of hunting on the maritime public domain limicolae, other than snipes and woodcocks, which is authorised by the Decree, is compatible with the Directive since, on the one hand, limicolae which nest in France have finished their period of reproduction and dependence and, on the other hand, these birds cannot be confused with the other species which are still vulnerable and which inhabit the maritime public domain;

Given secondly that, (i) pursuant to the provisions of Article 1 of the Decree under attack, the closing date for such hunting is fixed, according to species, on 31 January, 10 February, 20 February or the date for general closing, which, pursuant to the provisions of Article R. 224-4 of the Rural Code, may be fixed at the latest on the last day of February; and (ii) it follows from the generality of scientific data as this appears in the file before the Court and from the interpretation referred to above of Article 7 (4) of the Directive of 2 April 1979 that, although the Decree of 1 August could lawfully put off until 10 February the closing of hunting for pigeons, it is tainted with illegality to the extent that it fixes dates later than 31 January for the closing of the hunting of water rail widgeon woodcocks snipes and certain other limicolae, as well as turdidae;

Concerning the arguments of the National Union of Departmental Federations of Hunters and the National Association of Water Game Hunters:

Given that although these plaintiffs maintain that the Decree under attack fails to observe Article 7(4) of the Directive and Article L.224-2 of the Rural Code to the extent that it fixes only 1 September as the date for opening the hunting of snipes other limicolae and turtledoves, these provisions do not oblige the competent authorities to open the hunting of a given species as soon as it has finished its period of reproduction and dependence as that may be reasonably determined;

Given that although it is also argued that the shortening of the period for hunting snipes, limicolae and turtledoves may bring about a degradation of the humid zones where these species live since the hunters will no longer maintain during the summer the areas inhabited by them, this fact has no incidence on the lawfulness of the contested Decree;

Concerning the provisions introduced by Article 2 of the Decree of 1 August 2000:

Given that (i) Article R. 224-6 if the Rural Code, introduced by Article 2 of the Decree of 1 August 2000 provides, as laid down by the said provisions of the third paragraph of Article L. 224-2 of the Rural Code in the form resulting from the Law of 26 July 2000, that derogations from the rules resulting from dates for closing hunting may be granted “(…) in order to allow the capture, the detention, or any other form of judicious exploitation of a small quantity of geese, wood pigeons and thrushes until 20 February”; and (ii) these legal and regulatory provisions intended to apply Article 9(1) of the Directive of 2 April 1979, as the Minister for Territorial Development and the Environment certifies;

Given that (i) according to Article 9(1) of the Directive of 2 April 1979 Member States may derogate from Articles 5, 6, 7 and 8, provided that “there is no other satisfactory course of action”, and for reasons enumerated in paragraphs “a” “b” and “c”; (ii) according to “c” this is the case in order to “(…) allow , in strictly controlled conditions and in a selective manner, the capture, detention or any other judicious exploitation of certain birds in small quantities”;

Given that the evaluation of the lawfulness of Article R.224-6 of the Rural Code as arising from Article 2 of the Decree of August 2000 is subject to knowing whether Article 9(1)(c) of the Directive of 2 April 1979 allows derogations to be granted in respect of opening and closing dates for hunting taking into account the aims set out in Article 7(4), and, in the affirmative, what are the criteria and limits governing the granting of such derogations; and (iii) pursuant to Article 234 of the Treaty setting up the European Communities this question, which is of considerable difficulty, must be referred to the Court of Justice of the European Communities, and a decision on this part of the case must be deferred;

(…)

DECIDES:

(…)

Article 2: The provisions of the table annexed to Article 1 of the Decree of 1 August 2000 are quashed to the extent that they authorise, on the one hand, that hunting ducks, rallidae and coots be open, in regions other than the great nesting areas, on 10 August, and, on the other hand, that hunting water rail and widgeons, woodcock snipe and certain other limicolae as well as turdidae be closing after 31 January;

Article 3: Our decision is deferred on the arguments against Article 2 of the Decree of 1 August 2000 until the Court of Justice of the European Communities has answered the following question:

1 – Does Article 9(1)(c) of Directive 79-409 of the Council dated 2 April 1979 allow a member state to derogate from opening and closing dates for hunting which result from taking into account the aims set out in Article 7(4)?

2 – In the affirmative, what are the criteria for fixing the limits of such a derogation?

(…)

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