Judgment of the Court (Fourth Chamber) of 12 July 2007. Commission of the European Communities v Republic of Austria. Failure of a Member State to fulfil obligations

Case C-507/04

Commission of the European Communities

v

Republic of Austria

(Failure of a Member State to fulfil obligations – Conservation of wild birds – Directive 79/409/EEC – Measures transposing the directive)

Opinion of Advocate General Kokott delivered on 11 January 2007 

Judgment of the Court (Fourth Chamber), 12 July 2007 

Summary of the Judgment

1.     Environment – Conservation of wild birds – Directive 79/409 – Transposition without legislative action – Limits

(Council Directive 79/409)

2.     Environment – Conservation of wild birds – Directive 79/409 – Scope

(Council Directive 79/409, Arts 1 and 11)

3.     Environment – Conservation of wild birds – Directive 79/409 – Implementation by Member States

(Council Directive 79/409, Art. 9(1)(a) and (2))

4.     Environment – Conservation of wild birds – Directive 79/409 – Obligation to prohibit hunting during certain periods of particular bird vulnerability

(Council Directive 79/409, Art. 7(4))

5.     Environment – Conservation of wild birds – Directive 79/409 – Opening and closing dates for hunting

(Council Directive 79/409, Art. 9(1)(c))

6.     Environment – Conservation of wild birds – Directive 79/409 – Implementation by Member States

(Council Directive 79/409, Art. 8 and Annex IV)

1.     The transposition of Community legislation into national law does not necessarily require the relevant provisions to be enacted in precisely the same words in a specific express legal provision and that a general legal context may be sufficient for the purpose if it actually ensures the full application of the directive in a sufficiently clear and precise manner.

However, faithful transposition is particularly important in the case of Directive 79/409 on the conservation of wild birds, where management of the common heritage is entrusted to the Member States in their respective territories.

(see paras 89, 92)

2.     Article 11 of Directive 79/409 on the conservation of wild birds, which does no more than lay down a specific obligation requiring the Member States to see that the introduction of species of birds which do not occur naturally in the wild state in the European territory of the Member States does not prejudice the local flora and fauna, cannot be regarded as a legal basis justifying derogation from the obligations of protection which the Member States owe under Article 1 of the directive and relate to all species of birds naturally occurring in the wild state in the European territory of the Member States, that is to say, as regards each of those States, both to native species and to species which occur only in other Member States. The importance of complete and effective protection of wild birds throughout the Community, irrespective of the areas they stay in or pass through, causes any national legislation which delimits the protection of wild birds by reference to national fauna to be incompatible with the directive.

(see paras 101-103)

3.     Whilst it is true that the prevention of damage to vines can in principle justify the taking of derogating measures, pursuant to the third indent of Article 9(1)(a) of Directive 79/409 on the conservation of wild birds, that provision does not provide a legal basis for a species being entirely removed – even if the removal is temporally limited – from the system of protection laid down by the directive. Removing a species of bird entirely from that system, even for a defined period, could jeopardise the very existence of that species. Thus, the Member States are authorised to derogate from the system of protection for wild birds only if they observe the requirements set out in Article 9(2) of the directive.

(see paras 113-115)

4.     The system of protection against hunting laid down in Article 7(4) of Directive 79/409 on the conservation of wild birds is defined broadly, by reference to the specific biological characteristics of the species concerned, given that it concerns, in addition to the rearing season, the various stages of reproduction and rearing. Only such a view corresponds to the objective of Article 7(4), which is to secure a complete system of protection in the periods during which the survival of wild birds is particularly under threat. Any action during the periods that are connected with the reproduction of birds is liable to affect their reproduction, even if only a part of their population is concerned. That is also true of the mating season, during which the species concerned are particularly exposed and vulnerable. That season thus forms part of the period during which, in principle, all hunting is prohibited.

(see paras 192-195)

5.     Article 9(1)(c) of Directive 79/409 on the conservation of wild birds allows a Member State to derogate from the opening and closing dates for hunting which result from the taking into account of the objectives listed in Article 7(4) of the directive. In that regard, the hunting of wild birds for recreational purposes during the periods mentioned in Article 7(4) of the directive may, subject to compliance with the requirements laid down in Article 9(2), constitute a ‘judicious use’ within the meaning of Article 9(1)(c). However, the burden of proof regarding compliance with these requirements in respect of each derogation rests with the national authority taking the decision.

Moreover, when adopting measures transposing the latter provision, Member States must ensure that, in all cases of application of the derogation provided for therein and for all the protected species, authorised hunting does not exceed a ceiling consistent with the restriction on that hunting to small numbers, and that ceiling must be determined on the basis of strict scientific data. In order for the directive to be transposed in accordance with Community law, the authorities competent to authorise derogations in respect of birds of a given species must be able to rely on criteria which are sufficiently precise as to the quantitative ceilings to be complied with. It is therefore the task of the competent authorities of the Member State concerned to ensure, with sufficient legal precision and on the basis of recognised scientific data, that the quantitative ceiling is not in any event exceeded and, therefore, that the species covered are fully protected.

(see paras 196-199, 201, 225)

6.     The fact that, in a Member State, particular hunting methods or destructive practices prohibited by Directive 79/409 on the conservation of wild birds are unknown does not release the Member State in question from its obligation to adopt laws or regulations in order to ensure that the provisions of the directive are adequately transposed. The principle of legal certainty requires that the prohibitions which it imposes must be reproduced in mandatory legal instruments.

(see paras 280-281)

JUDGMENT OF THE COURT (Fourth Chamber)

12 July 2007 (*)

(Failure of a Member State to fulfil obligations – Conservation of wild birds – Directive 79/409/EEC – Measures transposing the directive)

In Case C‑507/04,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 8 December 2004,

Commission of the European Communities, represented by M. van Beek and B. Schima, acting as Agents, and by M. Lang, Rechtsanwalt, with an address for service in Luxembourg,

applicant,

v

Republic of Austria, represented by H. Dossi, acting as Agent, with an address for service in Luxembourg,

defendant,

THE COURT (Fourth Chamber),

composed of K. Lenaerts, President of the Chamber, E. Juhász, R. Silva de Lapuerta (Rapporteur), G. Arestis and T. von Danwitz, Judges,

Advocate General: J. Kokott,

Registrar: R. Grass,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 11 January 2007,

gives the following

Judgment

1       By its application, the Commission of the European Communities requests the Court to declare that the Republic of Austria has failed to fulfil its obligations under Articles 1(1) and (2), 5, 6(1), 7(1) and (4), 8, 9(1) and (2) and 11 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1; ‘the Directive’).

 Legal context

 Community legislation

2       As set out in Article 1(1), the Directive relates to the conservation of all species of birds naturally occurring in the wild state in the European territory of the Member States to which the EEC Treaty applies. It covers the protection, management and control of these species and lays down rules for their exploitation. Article 1(2) specifies that the Directive is to apply to birds and their eggs, nests and habitats.

3       Article 5 of the Directive provides:

‘Without prejudice to Articles 7 and 9, Member States shall take the requisite measures to establish a general system of protection for all species of birds referred to in Article 1, prohibiting in particular:

(a)      deliberate killing or capture by any method;

(b)      deliberate destruction of, or damage to, their nests and eggs or removal of their nests;

(c)      taking their eggs in the wild and keeping these eggs even if empty;

(d)      deliberate disturbance of these birds particularly during the period of breeding and rearing, in so far as disturbance would be significant having regard to the objectives of this Directive;

(e)      keeping birds of species the hunting and capture of which is prohibited.’

4       Article 6(1) of the Directive prohibits trade in protected bird species in the following terms:

‘Without prejudice to the provisions of paragraphs 2 and 3, Member States shall prohibit, for all the bird species referred to in Article 1, the sale, transport for sale, keeping for sale and the offering for sale of live or dead birds and of any readily recognisable parts or derivatives of such birds.’

5       Annex III/1 and Annex III/2 to the Directive list species which, in accordance with Article 6(2) and (3) of the Directive, are not covered by the prohibition on selling activities if certain conditions are met.

6       Article 7 of the Directive regulates the hunting of protected bird species. The first sentence of Article 7(1) states:

‘Owing to their population level, geographical distribution and reproductive rate throughout the Community, the species listed in Annex II may be hunted under national legislation.’

7       Article 7(4) of the Directive provides:

‘Member States shall ensure that the practice of hunting, including falconry if practised, as carried on in accordance with the national measures in force, complies with the principles of wise use and ecologically balanced control of the species of birds concerned and that this practice is compatible as regards the population of these species, in particular migratory species, with the measures resulting from Article 2. They shall see in particular that the species to which hunting laws apply are not hunted during the rearing season nor during the various stages of reproduction. In the case of migratory species, they shall see in particular that the species to which hunting regulations apply are not hunted during their period of reproduction or during their return to their rearing grounds. Member States shall send the Commission all relevant information on the practical application of their hunting regulations.’

8       Article 8 of the Directive provides:

‘1.      In respect of the hunting, capture or killing of birds under this Directive, Member States shall 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).

2.      Moreover, Member States shall prohibit any hunting from the modes of transport and under the conditions mentioned in Annex IV(b).’

9       Article 9(1) of the Directive states:

‘Member States may derogate from the provisions of Articles 5, 6, 7 and 8, where there is no other satisfactory solution, for the following reasons:

(a)      –        in the interests of public health and safety,

–       in the interests of air safety,

–       to prevent serious damage to crops, livestock, forests, fisheries and water,

–       for the protection of flora and fauna;

(b)      for the purposes of research and teaching, of repopulation, of reintroduction and for the breeding necessary for these purposes;

(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.’

10     In accordance with Article 9(2) of the Directive, the derogations must specify:

‘–      the species which are subject to the derogations,

–       the means, arrangements or methods authorised for capture or killing,

–       the conditions of risk and the circumstances of time and place under which such derogations may be granted,

–       the authority empowered to declare that the required conditions obtain and to decide what means, arrangements or methods may be used, within what limits and by whom,

–       the controls which will be carried out.’

11     Article 11 of the Directive obliges the Member States to see that any introduction of species of bird which do not occur naturally in the wild state in the European territory of the Member States does not prejudice the local flora and fauna.

 The provisions of Laws and regulations of the various Austrian provinces the compatibility of which with the Directive’s provisions is contested

 Province of Lower Austria

12     The following provisions are at issue: Paragraphs 17(5), 18, 20(4) and 21 of the Law of Lower Austria on Nature Protection (Niederösterreichisches Naturschutzgesetz 2000, LGBl. (Niederösterreich) 87/00; ‘the Nö NSchG’); Paragraph 95 of the Law of Lower Austria on Hunting (Niederösterreichisches Jagdgesetz 1974, LGBl. (Niederösterreich) 76/74; ‘the Nö JagdG’); and Paragraph 22 of the Regulation of Lower Austria on Hunting (Niederösterreichische Jagdverordnung, LGBl. (Niederösterreich) 28/77; ‘the Nö JagdVO’).

13     Paragraph 17 of the Nö NSchG provides:

‘…

5.      The planting and promotion of non-native plants and plants inappropriate to the location and the release and promotion in the wild of non-native fauna require authorisation from the Provincial Government. Authorisation shall be refused if native populations appropriate to the location, the natural (genetic) characteristics of native species of fauna and flora or the beauty and characteristics of a landscape area will suffer lasting harm.

…’

14     Paragraph 18 of the Nö NSchG states:

‘1.      The provisions on species protection shall serve to protect and maintain species of wild fauna and flora in their natural and historical diversity. Species protection encompasses:

(1)      the protection of animals, plants and their biocoenoses against harm caused by man, in particular by their being taken,

(2)      the protection, maintenance, development and restoration of habitats of species of wild fauna and flora and the safeguarding of their other conditions of life and

(3)      the introduction of fauna and flora of displaced wild species in appropriate biotopes within their natural range.

2.      Wild plants, or animals living in the wild that cannot be hunted, whose population needs to be protected or maintained,

(1)      because of their rarity or a threat to their population,

(2)      for scientific reasons or reasons relating to the region’s heritage,

(3)      because of their use or their importance for the ecosystem, or

(4)      in order to preserve the diversity or characteristic features of nature and landscape,

shall, by regulation of the Provincial Government, be placed entirely under protection or, if sufficient for conservation of the species, partly or temporarily under protection. The regulation may specify the species of fauna and flora whose population in the territory of the province is threatened with extinction.

3.      Non-native species may, by regulation, be placed on the same footing as specially protected native species if their population needs to be protected in order to restrict or eliminate, within the territory covered by this Law, causes of the decline in population endangering their existence and

(1)      they are specially protected in another Austrian province or in their country of origin,

(2)      they are listed, appropriately identified, in international treaties to which Austria has acceded, or

(3)      it is an established fact that they are threatened with extinction, but are not protected in their country of origin.

4.      In the case of the species specially protected under subparagraphs 2 and 3 it is prohibited:

…

(2)      to hunt, intentionally disturb, capture, hold, injure or kill animals, or, whether they are alive or dead, acquire them, keep them, pass them on, transport them or offer them for sale;

(3)      to damage, destroy or take away eggs, larvae, chrysalises or nests of these animals or their nesting, breeding or spawning sites or places of refuge; and

(4)      to cause disturbance to the biotopes, breeding sites and sites of habitation of the species threatened with extinction and listed in the regulation, in particular by photographing or filming.

5.      Where there is no other satisfactory solution, it is permitted from October until the end of February to remove, damage or destroy the breeding sites or nests of specially protected animals if they contain no young and are in buildings.

6.      If necessary, the regulation may also lay down measures to protect the habitat and maintain and increase the population of specially protected species, and may prohibit or restrict acts which may further reduce populations.

…’

15     Paragraph 20 of the Nö NSchG states:

‘…

(4)      The Provincial Government may by decision grant derogations from Paragraph 18, in particular for scientific or pedagogical purposes, when there is no reason to fear a material risk to protected flora growing in the wild and protected fauna living in the wild … The authorisation shall lay down at least:

1.      the species which are subject to the derogation,

2.      the means, arrangements or methods authorised for capture or killing and

3.      the controls which will be carried out.’

16     Paragraph 21 of the Nö NSchG is worded as follows:

‘1.      Without prejudice to specific rules laid down by the provisions of this Law or to regulations or decisions adopted on the basis of this Law, measures connected with commercial use of land shall remain in principle unaffected … This exemption clause does not apply where protected flora and fauna or protected habitats are deliberately harmed or fauna and flora threatened with extinction … are affected by measures.

2.      Without prejudice to specific rules laid down by the provisions of this Law or to regulations or decisions adopted on the basis of this Law, measures connected with an up-to-date and sustainable agricultural or silvicultural use of land within the framework of an agricultural or silvicultural operation shall remain in principle unaffected … This exemption clause does not apply where protected flora and fauna or protected habitats are deliberately harmed or fauna and flora threatened with extinction … are affected by measures.

3.      Agricultural or silvicultural use shall be considered to be up-to-date and sustainable where the activities in an agricultural or silvicultural operation serve to produce or obtain plant or animal products and are organised in accordance with processes which are customary in a particular area and at a particular time or on the basis of traditional experience, and the use, adapted to the natural conditions, durably ensures performance in a functioning system, without the productive base being exhausted and nature and landscape being unduly burdened.’

17     Paragraph 95 of the Nö JagdG provides:

‘1.      All non-selective hunting methods are prohibited; in particular it is prohibited:

…

(3)      to hunt at night …; the hunting of … capercaillie, black grouse, wild goose, wild duck and snipe is excluded from this prohibition;

(4)      to use, when capturing or killing game, devices for illuminating targets,

…

(8)      to use blind or mutilated animals as live decoys, or anaesthetic bait; to use tape recorders, or electric or electronic devices capable of killing or stunning; to use mirrors or other dazzling devices, explosives, or nets that operate non-selectively; to gas or smoke animals out;

(9)      to hunt game birds with snares, limes, hooks, nets or traps;

(10)      to hunt from aircraft, moving motor vehicles, or boats that can be operated at a speed of more than five kilometres per hour.

…’

18     Paragraph 22 of the Nö JagdVO states:

‘(1)      The following game may, in principle, be hunted, captured or killed only during the periods indicated below:

…

15.      capercaillie, from 1 to 31 May in even-numbered years;

16.      black grouse, from 1 to 31 May in odd-numbered years;

…

18.      Rackelhahn [a capercaillie/black grouse hybrid], from 1 January to 31 December;

…

22.      woodcock, from 1 September to 31 December and from 1 March to 15 April;

…’

 Province of Burgenland

19     The following provisions are at issue: Paragraphs 16, 16a and 16b of the Law of Burgenland on Nature Protection and Maintenance of the Countryside (Burgenländisches Naturschutz- und Landschaftspflegegesetz, LGBl. (Burgenland) 27/1991; ‘the Bgld NSchLPflG’); Paragraphs 88a(1) and (2) and 88b of the Law of Burgenland on Hunting (Burgenländisches Jagdgesetz 1988, LGBl. (Burgenland) 11/1989; ‘the Bgld JagdG’); Paragraph 76(1) of the Regulation of Burgenland on Hunting (Burgenländische Jagdverordnung, LGBl. (Burgenland) 24/1989; ‘the Bgld JagdVO’); and Paragraphs 2 and 6 of the Regulation of Burgenland on the Protection of Species (Burgenländische Artenschutzverordnung 2001, LGBl. (Burgenland) 36/2001; ‘the Bgld ArtenschutzVO’).

20     Paragraph 16 of the Bgld NSchLPflG provides:

‘1.      In so far as they are not regarded as game or subject to fisheries law, protection is conferred upon:

(a)      the wild animals referred to in … and in Annex I to Directive 79/409/EEC, Annexes II, IV and V to Directive 92/43/EEC and Appendices II and III to the Bern Convention, and the species listed in Appendices I and II to the Bonn Convention;

(b)      without prejudice to subparagraph (a), all other species of wild birds, with the exception of the European starling (Sturnus vulgaris) in accordance with Paragraph 88a of the [Bgld JagdG] …

2.      The Provincial Government may, in respect of protected or endangered animals, lay down by regulation:

(a)      exceptions …;

(b)      those measures and methods of capture which, for the purpose of protecting animal populations, are prohibited;

(c)      measures which are to be taken to protect the progeny of protected animals; in addition it shall:

(d)      list those animal species for the protection of which it is prohibited to remove, damage or destroy nests and their locations, mating grounds and reproduction, resting and wintering areas (trees having nests or hollows, cliffs and rockfaces used for hatching, reed colonies, burrows and so forth); and

…

4.      Protected animals at all stages of their development may not be pursued, disturbed, captured, transported, held, injured, killed, kept, taken away or harmed. It is prohibited to offer for sale, acquire or pass on such animals or parts of such animals, regardless of their condition, age or stage of development. It is also prohibited for a person to announce publicly that he is willing to sell or acquire such animals.

5.      Any person who owns or possesses animals of protected species (including parts thereof and developing forms thereof) must, on request, prove their provenance to the authorities. Protected animals which are found dead or in need of care shall be property of the province and shall without delay be handed over to the authorities or to a scientific institution named by them.

…’

21     Paragraph 16a of the Bgld NSchLPflG provides:

‘1.      The Provincial Government shall safeguard or restore a sufficient variety and a sufficient surface area of the habitats of the species referred to in Directives 79/409/EEC and 92/43/EEC … This shall involve, in particular, the following measures:

(a)      the establishment of protected areas … or the conclusion of agreements and the grant of aid …;

(b)      the maintenance and the protection-based formation of habitats inside and outside the specially protected areas;

(c)      the restoration of destroyed habitats;

(d)      the creation of new habitats;

(e)      the maintenance, restoration and improvement of those ecological processes which bring about the natural development of habitats.

2.      The Provincial Government shall monitor and document the conservation status of the species referred to in the directives ...

3.      The Provincial Government shall, by regulation, establish research measures, control measures or conservation measures in order to ensure that unintentional capture or killing has no adverse effects on protected species.

…’

22     Paragraph 16b of the Bgld NSchLPflG provides:

‘The Provincial Government shall, bearing in mind their respective needs for protection, take special conservation measures for regularly occurring migratory species, as regards their breeding, moulting and wintering areas and the staging posts along their migration routes and in the immediate vicinity thereof. To this end, particular attention shall be paid to the protection of wetlands, above all to wetlands of international importance.’

23     Paragraph 88a of the Bgld JagdG states:

(1)      To protect vines (subparagraph 2), the combating of the European starling is permissible in the period from 15 July to 30 November.

(2)      The need for this measure shall be established by regulation of the Provincial Government when it is to be anticipated that European starlings will appear in very large numbers in the area of vineyards ...’

24     Paragraph 88b of the Bgld JagdG provides:

‘…

(2)      Woodcock may be hunted from 1 March to 15 April under the form of hunting called ‘Schnepfenstrich’ [mating flight of the snipe].’

25     Paragraph 76 of the Bgld JagdVO provides:

‘1.      The following huntable animals may not be tracked, captured, or killed during the close seasons specified below:

…

(2)      Game birds:

…

(e)      Wild pigeons and doves:

         wood pigeon and collared dove, from 16 April to 30 June,

         turtle dove, from 1 November to 30 June;

(f)      Snipes:

         woodcock, from 1 January to 28 February and from 16 April to 30 September,

         …

…’

26     Paragraph 2 of the Bgld ArtenschutzVO provides:

‘1.      It is prohibited to harm the nesting, reproduction, resting and wintering areas of the following animals:

European bee-eater (Merops apiaster)

roller (Coracias garrulus)

Eurasian jackdaw (Corvus monedula)

kingfisher (Alcedo atthis)

…

common tern (Sterna hirundo)

bank swallow (Riparia riparia)

white-backed woodpecker (Dendrocopos leucotos)

white stork (Ciconia ciconia)

Eurasian hoopoe (Upupa epops)

…

2.      In particular it is prohibited:

(1)      to remove or, during the reproduction period, to climb up rocks, steep faces and woody plants which serve as living areas for animals listed in Paragraph 2(1);

…’

27     Paragraph 6 of the Bgld ArtenschutzVO states:

‘Agricultural and silvicultural use is permitted in accordance with Paragraph 19 of the [Bgld NSchLPflG]. The lawful pursuit of hunting and fishing is not affected by this regulation.’

 Province of Carinthia

28     The following provisions are at issue: Paragraphs 3, 51(1) to (5), 59(1) and 68(1) of the Law of Carinthia on Hunting (Kärntner Jagdgesetz 2000, LGBl. (Kärnten) 21/2000; ‘the KrntJagdG’); and Paragraph 9(2) of the Regulation of Carinthia implementing the Law on Hunting (Kärntner Jagdgesetz 2000 – Durchführungsverordnung, LGBl. (Kärnten) 132/1991; ‘the KrntJagdVO’).

29     Paragraph 3 of the KrntJagdG provides:

‘(1)      Hunting shall be engaged in an appropriate and huntsmanlike manner, observing the principles for the proper management of hunting ... It is prohibited to endanger the population of a species of game by engaging in hunting in an improper manner. In addition, hunting shall be engaged in in such a way as not to diminish the beneficial effects of the forest that are in the public interest and, in particular, so as to prevent game from causing damage that threatens the forest …

(2)      Hunting is managed properly where, through the pursuit of hunting, including care for and protection of game, a species-rich and healthy game population appropriate to the size and nature of the hunting area is achieved and preserved. In this connection, regard is to be had to a balanced ecosystem, to the needs of agriculture and silviculture, and to land-use planning regarding the ecological requirements for game. The proper management of hunting also encompasses due game protection.

…’

30     Paragraph 51 of the KrntJagdG states:

‘(1)      Throughout the entire year there shall be no hunting of: …

(2)      With regard to game not listed in subparagraph 1, the Provincial Government, having regard to the principles for the proper management of hunting (Paragraph 3) and to the conservation of threatened species of game, and taking account of the age, sex and specific biological characteristics of the game, shall by regulation lay down what game is not to be hunted throughout the entire year or during certain periods (close seasons). …

(3)      If there is serious risk to game populations as a result of losses of game caused by exceptional weather conditions, natural catastrophes, epidemics affecting game and so forth, in the interests of the proper management of hunting the Provincial Government may, throughout the province, in individual administrative districts or in individual hunting areas, extend the close seasons or lay down that certain species of game are not to be hunted throughout the entire year. This regulation shall be repealed as soon as the reason for its adoption has ceased to apply.

(4)      For specified species of game the Provincial Government may, in respect of all or individual hunting areas, extend the close seasons laid down under subparagraph 1 or 2 or – in so far as game under subparagraph 4a is not at issue – cancel or shorten them, if this appears justified in the interests of the proper management of hunting, having regard to local or climatic conditions. These regulations may in each case be adopted only for a period of two years.

(4a)      In order to enable game birds the hunting of which is prohibited throughout the year … to be killed, captured or kept on a selective basis and in small numbers, the Provincial Government may, where there is no other satisfactory solution, cancel or shorten the close season laid down under subparagraph 1 for this game, in the interests of public health, public safety and air safety, in order to prevent serious damage to crops, livestock, forests, fisheries and water, in order to protect wild fauna and flora, or for purposes of research, repopulation or reintroduction and the breeding necessary for these purposes. In addition, such a regulation may be adopted only if the cancellation or shortening of the close season is not detrimental to the maintenance of the populations of the species listed in the regulation at a favourable conservation status. In so far as game birds the hunting of which is prohibited throughout the year are not at issue, such a regulation may also be adopted, if the other conditions are met, for the protection of property generally or to conserve a natural habitat. These regulations may in each case be adopted for a maximum period of two years.

(5)      The Provincial Government may in addition suspend for an appropriate period, in individual or all hunting areas in an administrative district, the close season applicable to a specified species of game – except one of the species referred to in subparagraph 4a – if this is required in the interests of the proper management of hunting, or of agriculture or silviculture. The close season for game referred to in subparagraph 4a may be suspended, however, only where this appears to be required to protect one of the interests listed in subparagraph 4a, and provided that there is no other satisfactory solution and the conditions laid down in the second sentence of subparagraph 4a are met.

…’

31     Paragraph 59 of the KrntJagdG states:

‘(1)      A person entitled to hunt is obliged to enter game that has been killed or captured or has otherwise perished during the hunting year in his hunting area on a list of game shot, to be kept separately for each hunting area; where only one shooting plan has been adopted for adjoining hunting areas, the entries shall be made on one list. …

(2)      The form laid down by regulation of the executive committee of the Carinthia Hunting Association shall be used for keeping the list of game shot. When adopting the regulation, consideration shall be given to the content and the objective of the list.

…’

32     As provided in Paragraph 68 of the KrntJagdG:

‘(1)      It is prohibited:

…

19.      to destroy nests and clutches of game birds or to collect the eggs without authorisation … and to disturb the breeding places of game birds during the breeding period and the rearing of the young;

…’

33     Paragraph 9 of the KrntJagdVO is worded as follows:

‘…

(2)      The following game may be hunted only during the indicated periods (hunting seasons) and shall be preserved outside them:

…

–       capercaillie, from 10 to 31 May;

–       black grouse, from 10 to 31 May;

…

–       common coot, from 16 August to 31 January;

–       woodcock, from 1 September to 31 December and from 16 March to 10 April;

–       wood pigeon and collared dove, from 1 August to 31 December and from 16 March to 10 April;

–       carrion crow, from 1 July to 15 March;

–       jay, from 1 July to 15 March;

–       black-billed magpie, from 1 July to 15 March.

…’

 Province of Upper Austria

34     The following provisions are at issue: Paragraph 27(1) and (2) of the Law of Upper Austria on Nature and Countryside Protection (Oberösterreichisches Natur- und Landschaftschutzgesetz 2001, LGBl. (Oberösterreich) 129/2001; ‘the Oö NSchG’); Paragraphs 48(1) to (4) and 60(3) of the Law of Upper Austria on Hunting (Oberösterreichisches Jagdgesetz, LGBl. (Oberösterreich) 32/1964; ‘the Oö JagdG’); Paragraphs 5(2) and 11 of the Regulation of Upper Austria on the Protection of Species (Oberösterreichische Artenschutzverordnung, LGBl. (Oberösterreich) 73/2003; ‘the Oö ArtenschutzVO’); and Paragraph 1 of the Regulation of Upper Austria on Close Seasons (Oberösterreichische Schonzeitenverordnung, LGBl. (Oberösterreich) 30/1990; ‘the Oö SchonzeitenVO’).

35     Paragraph 27 of the Oö NSchG provides:

‘1.      Wild plants and mushrooms and animals living in the wild that cannot be hunted may be specially protected by regulation of the Provincial Government, in so far as the relevant species is rare in the countryside of the area, the existence of its population is threatened, or its conservation is in the public interest on grounds of protection of the ecosystem, provided that other public interests do not out outweigh those conservation interests. This provision shall not affect statutory provisions to the contrary.

2.      A regulation under subparagraph 1 shall, regard being had to Articles 5 to 7 and 9 of the Birds Directive and Articles 12 and 13 of the Habitats Directive, define more precisely in particular:

(1)      the species entirely or partly protected;

(2)      the area and period of protection;

(3)      measures to protect the progeny, wild or farmed, of protected plants, mushrooms or animals;

(4)      measures to protect the narrower habitats of protected plants, mushrooms or animals.’

36     Paragraph 48 of the Oö JagdG states:

‘(1)      For the purpose of care for and protection of game …, the hunting of game shall be prohibited to the extent necessary, taking account of the requirements of rural development. The Provincial Government shall by regulation, after consulting the province’s advisory board for hunting, set the close seasons for individual species of game, subdivided if need be according to age and sex, or shall halt the hunting of certain species of game entirely.

(2)      During the close season, animals of the relevant species of game shall not be hunted, captured or killed.

(3)      It is prohibited to remove, damage or destroy clutches and nests of game birds; however, the person who has the right to hunt is allowed to gather eggs of game birds for the purpose of artificial rearing and to incubate them.

(4)      The Provincial Government may authorise game to be captured during the close season for the purpose of rearing, and to be killed for scientific purposes or purposes of examination.

…’

37     Paragraph 60 of the Oö JagdG states:

‘…

3.      In residential and commercial buildings and enclosed domestic gardens, the occupier may capture or kill, and appropriate, … goshawks, buzzards and sparrow hawks if that is necessary to prevent serious damage, in particular to crops, in respect of the keeping of animals, and to other forms of property.’

38     Paragraph 5 of the Oö ArtenschutzVO is worded as follows:

‘Protection … is conferred upon:

(2)      wild species of birds that cannot be hunted and naturally occur in the European territory of the Member States of the European Union (Article 1 of Directive 79/409/EEC …), except the black-billed magpie (Pica pica), jay (Garrulus glandarius), carrion crow (Corvus corone corone) and hooded crow (Corvus corone cornix).

…’

39     Paragraph 11 of the Oö ArtenschutzVO provides:

‘Authorisation may be given for the selective capture [of specimens] of species … for traditional song-bird exhibitions only in the administrative district of … outside special protection areas for birds (fourth subparagraph of Article 4(1) of the Birds Directive) and authorisation may be given to keep them only in the districts of …, and only subject to the following conditions:

…’

40     Paragraph 1 of the Oö SchonzeitenVO provides:

‘1.      The following huntable animals may not be hunted, captured or killed during the close season specified below:

…

Capercaillie, black grouse and Rackelhahn:

–       cock, from 1 June to 30 April;

–       hen, throughout the year.

…

Woodcock, from 1 May to 30 September.

…

2.      The days on which the respective close seasons begin and end are included in the close season.’

 Province of Salzburg

41     The following provisions are at issue: Paragraphs 3, 54(1), 59, 60(3a) and (4a), 72(3), 103 and 104 of the Law of Salzburg on Hunting (Salzburger Jagdgesetz 1993, LGBl. (Salzburg) 100/1993; ‘the Sbg JagdG’); Paragraph 34 of the Law of Salzburg on Nature Protection (Salzburger Naturschutzgesetz 1999, LGBl. (Salzburg) 73/1999; ‘the Sbg NSchG’); and Paragraph 1 of the Regulation of Salzburg on Close Seasons (Salzburger Schonzeiten-Verordnung, LGBl. (Salzburg) 53/1996; ‘the Sbg SchonzeitenVO’).

42     Paragraph 3 of the Sbg JagdG provides:

‘The right to hunt shall be exercised in compliance with the principles of proper hunting … in such a way that:

(a)      a healthy game population that is rich in species and appropriate to the available habitat is conserved;

(b)      the natural foundations for the life of game are conserved;

(c)      the beneficial effects of the forest that are in the public interest are not prejudiced and in particular damage, caused by game, that threatens the forest is avoided;

(d)      the public interest in protection of nature and of the landscape is not prejudiced;

(e)      the diversity of the world of wild animals, as an essential component of indigenous nature and as part of the natural structure of interaction, is preserved;

(f)      proper agricultural and silvicultural use of land is affected as little as possible.’

43     Paragraph 54 of the Sbg JagdG states:

‘(1)      Close seasons shall be set by regulation of the Provincial Government for the species of game listed below: … capercaillie, Rackelhahn, black grouse, pheasant, wood pigeon, collared dove, mallard, common pochard, tufted duck, bean goose, greylag goose, woodcock, common coot, carrion crow, hooded crow, raven, black-billed magpie, jay, black-headed gull, grey heron, cormorant. During the close seasons (including the initial and final day), these species of game may not be pursued, captured or killed … When setting the periods, account is to be taken of the particular biological characteristics of the species with a view to lasting care and protection, and of the requirements of agriculture and silviculture. Separate close seasons by reference to age and sex may also be fixed. For species of birds which are not named in Annex II to the Birds Directive … as species that may be hunted in Austria, hunting seasons may be laid down only if the conditions prescribed in Paragraph 104(4) are met. In the case of all other species of birds, it must be ensured that the rearing season, the various stages of reproduction and, in the case of migratory species, also the return to rearing grounds fall within the close season.

…’

44     Paragraph 59 of the Sbg JagdG provides:

‘(1)      ... In addition, wild species of birds which are not named in Annex II to the Birds Directive as species that may be hunted in Austria may be shot down only within the framework of a shooting plan. The Provincial Government may lay down by regulation that certain further species of game may likewise be shot down only within the framework of a shooting plan, where this is necessary in order to achieve and conserve a game population corresponding to the principles in Paragraph 3. …

(2).      In all planning of shooting, regard is to be had to the number of animals shot down in the preceding years, to game whose death has demonstrably not been caused by hunting, to the extent and development of damage to the forest caused by game, and to the state of health and population structure of the game.

(3)      The Provincial Government shall lay down by regulation the more detailed provisions necessary for drawing up and adopting the shooting plan ...’

45     Paragraph 60 of the Sbg JagdG is worded as follows:

‘…

(3a)      In the case of birds covered by the second sentence of Paragraph 59(1), no minimum numbers to be shot may be set. Maximum numbers and their allocation to game zones are to be set by regulation of the Provincial Government, applying Paragraph 104(4) mutatis mutandis. Prior to adoption of such a regulation, the Salzburg Hunting Association, the Fishing Association for the Province of Salzburg, the Chamber for Agriculture and Silviculture in Salzburg and the Provincial Legal Office for the Environment shall be consulted. The maximum numbers to be shot shall be set so that in the territory of the province a population of each species of bird that corresponds to the principles in Paragraph 3 is achieved or conserved and no unacceptable damage occurs.

…

(4a)      The annual shooting plan shall contain for each species of game, subdivided according to sex and age group in so far as necessary, the maximum numbers to be shot or the minimum numbers, or both, and their allocation among the individual hunting areas. ...’

46     Paragraph 72 of the Sbg JagdG provides:

‘…

3.      The use of traps designed to kill game is in principle prohibited. The Provincial Government may, however, by decision order hunt owners or conservation associations to use such traps where:

(a)      human life or health is threatened by game and this threat cannot be averted in another manner, or

(b)      public interests of comparable importance cannot be protected in another manner.

…’

47     Paragraph 103 of the Sbg JagdG states:

‘(1)      The following species of game shall be specially protected at all stages of life:

…

(b)      all species of feathered game.

(2)      The following protective provisions apply to species of game under subparagraph 1:

(a)      all forms of deliberate capture or killing of animals taken from the wild are prohibited;

(b)      deliberate disturbance of these species, in particular during breeding, rearing, wintering and migration periods, is prohibited;

(c)      any damage to, or destruction or removal of, breeding or nesting sites or resting places that is deliberate is prohibited;

(d)      the taking of eggs from the wild and the possession of eggs, even if empty, are prohibited;

(e)      the possession, transport, sale or exchange or the offering for sale of live or dead animals … taken from the wild is prohibited; this prohibition also applies to any derivative of the animal, and any other goods which appear, from an accompanying document, the packaging or a mark or label, or from any other circumstances, to be parts or derivatives of the animal;

(f)      the sale of live or dead animals … taken from the wild and transporting them, holding them for sale and offering them for sale are prohibited; this prohibition also applies to recognisable parts of those animals and to derivatives thereof.

(3)      Where clutches are endangered by agricultural or silvicultural measures, they may be moved by the hunt owner or removed for the purpose of artificial rearing if the clutch cannot be saved in any other manner.’

48     Paragraph 104 of the Sbg JagdG provides:

‘…

4.      The authority may authorise further derogations from the prohibitions under Paragraph 103(2) where that does not jeopardise the population of the species of game concerned and there is no satisfactory alternative for achieving the purpose pursued. Such derogations may be granted only for the following purposes:

(a)      to protect other wild animals and plants and to conserve their natural habitats;

(b)      to avoid serious damage to crops, livestock, forests, fishing waters and, in the case of furred game, to other forms of property;

(c)      in the interests of public health and public safety or, in the case of furred game, also for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment;

(d)      for the purposes of research and teaching;

(e)      to increase the population of those species or reintroduce them, and for the breeding required to that end;

(f)      for trade in a small number of animals (or parts of animals or products obtained from those animals) of those species of feathered game which under subparagraph 1 are allowed to be captured or killed.’

49     Paragraph 34 of the Sbg NSchG is worded as follows:

‘1.      The competent nature protection authority may, on application, authorise derogations from the prohibitions under … Authorisation may … only be granted for measures which serve one of the following purposes:

…

(2)      the production of beverages;

…

3.      Authorisations under subparagraph 1 may be granted only if the purpose of the measure cannot be satisfactorily achieved by other means and the relevant population of the animal or plant species in question also does not suffer deterioration in the area of the interference.’

50     Paragraph 1 of the Sbg SchonzeitenVO provides:

‘The following close seasons, which in each case include the initial and final day, are set for the species of game indicated:

Species of game                                              Close season

…

Capercaillie                                                        1.6 – 30.4

Rackelhahn                                                       16.6 – 30.4

Black grouse                                                       16.6 – 30.4

…

Woodcock                                                        1.1 – 28.2

                                                                                 16.4 - 30.9

…’

 Province of Tyrol

51     The following provisions are at issue: Paragraph 1(1) of the Second Regulation implementing the Law of Tyrol on Hunting (Zweite Durchführungsverordnung zum Tiroler Jagdgesetz, 1983, LGBl. (Tirol) 16/1995; ‘the DurchfVO Tiroler JagdG’); and Paragraph 4(3) of the Regulation of Tyrol on Nature Protection (Tiroler Naturschutzverordnung 1997, LGBl. (Tirol) 95/1997; ‘the Tiroler NSchVO’).

52     Paragraph 1 of the DurchfVO Tiroler JagdG states:

‘1.      In so far as not otherwise provided ..., the species of game listed below may be hunted only during the periods indicated (hunting seasons):

…

(9)      Capercaillie, only in odd-numbered years from 1 May to 15 May;

(10)      Black grouse, from 10 May to 31 May;

…’

53     Paragraph 4 of the Tiroler NSchVO provides:

‘…

(2)      It is prohibited:

(a)      deliberately to disturb, pursue, capture, hold, keep whether alive or dead, transport, offer for sale, sell, acquire or kill animals of the protected species;

…

(3)      The prohibition under subparagraph 2(a) does not encompass the driving away of crows, starlings and blackbirds from land cultivated for agricultural or silvicultural purposes and domestic gardens.’

 Province of Vorarlberg

54     The provision at issue is Paragraph 27(1) of the Regulation of Vorarlberg on Hunting (Vorarlberger Jagdverordnung, LGBl. (Vorarlberg) 24/1995; ‘the Vlbg JagdVO’), which provides:

‘(1)      During the periods listed below, including the initial and the final day, the following animals may be hunted:

…

(c)      black grouse                                              11.05 – 31.05

…’

 Province of Vienna

55     The following provisions are at issue: Paragraph 69(1) of the Law of Vienna on Hunting (Wiener Jagdgesetz, LGBl. (Wien) 6/1948; ‘the Wiener JagdG’); and Paragraph 1(1) of the Regulation of Vienna on Close Seasons (Wiener Schonzeitenverordnung, LGBl. (Wien) 26/1975; ‘the Wiener SchonzeitenVO’).

56     Paragraph 69 of the Wiener JagdG provides:

‘1.      Having regard to the requirements of rural development, close seasons shall be set by regulation, in accordance with the principles of sound hunting management, for the individual species of huntable animals …, subdivided where appropriate according to age and sex. During its close season, game may not be pursued, captured or killed. The initial day and the final day are included in the close season.

…’

57     Paragraph 1 of the Wiener SchonzeitenVO provides:

‘(1)      The following huntable animals may not be pursued, captured or killed during the close seasons specified below:

…

12.      Woodcock, from 16 April to 15 October;

…’

 Pre-litigation procedure

58     On 13 April 2000 the Commission sent a letter of formal notice to the Republic of Austria concerning a number of provisions of Laws and regulations enacted by its provinces which, in the Commission’s view, did not satisfy the requirements for complete and correct transposition of the Directive.

59     The Republic of Austria replied by a letter of 26 July 2000 in which it informed the Commission that certain legislation was being amended, while contesting the Commission’s view as regards correct transposition of the Directive.

60     On 17 October 2003 the Commission delivered a reasoned opinion calling on the Republic of Austria to adopt the measures necessary to comply with it within a period of two months. It is apparent from that opinion that the Commission had not maintained some of the complaints set out initially.

61     The Republic of Austria replied to the reasoned opinion by letter of 23 December 2003. It stated that further amendments, consistent with the Commission’s legal views, were envisaged to Laws and regulations, while retaining a number of arguments supporting the position that had been put forward in its reply to the letter of formal notice.

62     In those circumstances, the Commission decided to bring the present action.

 Procedure before the Court

63     In its application the Commission put forward 39 grounds of infringement against the defendant.

64     In its defence, the defendant accepted that 13 of those grounds were well founded. It also acknowledged that two other grounds were well founded in part.

65     In the course of the proceedings before the Court, the Commission withdrew a number of grounds of infringement in whole or in part, taking the view that certain provisions of the Directive had in the meantime been transposed correctly in certain provinces.

66     However, the action at the current stage of the proceedings concerns the transposition of the same provisions as those referred to in the application initiating the proceedings.

 The action

 Uncontested grounds of infringement

 Subject-matter of the Commission’s complaints

–       Breach of Article 1(1) and (2) of the Directive in Carinthia, Lower Austria and Styria

67     The Commission states that it is apparent from Annex 1 to the Regulation of Carinthia on the Protection of Animal Species (Kärntner Tierartenschutzverordnung; ‘the KrntTaSchVO’), which relates to Paragraph 1 of that regulation, that the carrion crow, the hooded crow, the jay, the Eurasian jackdaw, the black-billed magpie, the house sparrow and the common pigeon are not protected species, even though they are wild birds. The protection required by the Directive must extend, in principle, to all species of birds naturally occurring in the wild state in the European territory of the Member States.

68     The Commission observes that, under Paragraph 3(5) of the Regulation of Lower Austria on the Protection of Wild Plants and Animals (Niederösterreichische Verordnung über den Schutz wildwachsender Pflanzen und freilebender Tiere; ‘the Nö NschVO’), only ‘native’ species of birds are entirely protected. Furthermore, five species falling within this category, namely the carrion crow, the hooded crow, the Eurasian jackdaw, the house sparrow and the common pigeon, are excluded from the system of protection prescribed by the Directive.

69     The Commission submits that, under Paragraph 4 of the Regulation of Styria on Nature Protection (Steiermärkische Naturschutzverordnung; ‘the Stmk NSchVO’), the European starling, the house sparrow, the common pigeon and the raven, even where native species are involved, are excluded between 1 July and 31 January from the protection required by the Directive.

–       Breach of Article 5 of the Directive in Carinthia, Lower Austria and Styria

70     The Commission observes that it follows from Annex I to the KrntTaSchVO that the carrion crow, the hooded crow, the jay, the Eurasian jackdaw, the black-billed magpie, the house sparrow and the common pigeon are not protected as required by the Directive.

71     The Commission notes that, in accordance with Paragraph 3(5) of the Nö NSchVO, only ‘native’ species of birds are protected. Furthermore, five such species, namely the carrion crow, the hooded crow, the Eurasian jackdaw, the house sparrow and the common pigeon, are excluded from the system of protection prescribed by the Directive. Nor does the general system of protection laid down in Paragraph 18(4) and (5) of the Nö NschVO apply to these species.

72     The Commission submits that Paragraph 13e of the Law of Styria on Nature Protection (Steiermärkisches Naturschutzgesetz) provides for the adoption of regulations to protect birds covered by the Directive. However, no regulation based on that provision has been adopted. Furthermore, the European starling, the house sparrow, the common pigeon and the raven, even where native species are involved, are protected only from 1 February to 30 June.

–       Breach of Article 7(1) of the Directive in Lower Austria

73     The Commission observes that the effect of Paragraph 3(5) and of Paragraph 4(1) and (2) of the Nö NschVO is that the carrion crow, the hooded crow, the Eurasian jackdaw and the house sparrow are entirely excluded from the protection required by the Directive, and the jay and the black-billed magpie are partially excluded. These provisions do not comply with Article 7(1) of the Directive, which provides that only the species listed in Annex II to the Directive may be hunted.

–       Breach of Article 7(4) of the Directive in Styria

74     The Commission observes that Paragraph 49(1) of the Law of Styria on Hunting (Steiermärkisches Jagdgesetz; ‘the Stmk JagdG’), in conjunction with Paragraph 1(1) of the Regulation of Styria on Hunting Seasons (Steiermärkische Jagdzeitenverordnung), lays down hunting seasons incompatible with the Directive as regards a number of species, namely the capercaillie (from 1 to 31 May, instead of from 1 October to 28 February), the black grouse (from 1 to 31 May, instead of from 21 September to 31 March) and the woodcock (from 16 March to 15 April and from 1 September to 31 December, instead of from 11 September to 19 February).

–       Breach of Article 9(1) and (2) of the Directive in Styria

75     The Commission submits that Paragraph 62(2) of the Stmk JagdG and Paragraph 5(1) of the Stmk NschVO fail to take account of Article 9 of the Directive, given that they lay down, as regards the removal of nests and breeding sites of protected species in private gardens and buildings, a general derogation from the system of protection prescribed by the Directive.

76     The Republic of Austria states that the amendments needed to render all the national legislation referred to above consistent with the Directive are being prepared.

 Findings of the Court

77     With regard to the complaint set out by the Commission concerning whether the system of protection for the common pigeon in Carinthia complies with Article 5 of the Directive, it is to be observed that, according to paragraph 44 of the application, this species falls within the Directive whereas, according to paragraph 47 of the application, it is not to be counted as a wild bird.

78     It thus appears that the application contains a contradiction in this regard and, accordingly, does not satisfy the requirements of Article 38(1)(c) of the Rules of Procedure. The action is therefore inadmissible in so far as it relates to the system of protection for the common pigeon in Carinthia.

79     As to the remainder, it is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion, and that the Court cannot take account of any subsequent changes in primary or secondary legislation (see, inter alia, Case C-323/01 Commission v Italy [2002] ECR I-4711, paragraph 8, and Case C-23/05 Commission v Luxembourg [2005] ECR I-9535, paragraph 9).

80     Given the notification of the reasoned opinion on 17 October 2003 and the period laid down in that opinion, the provisions of national law at issue had to be consistent with the Directive’s requirements by 17 December 2003 at the latest.

81     However, it is apparent from the Republic of Austria’s observations concerning the grounds of infringement referred to above that it concedes that the measures needed to transpose the Directive correctly in those various respects had not been adopted within the time-limit set.

82     The action must therefore be held to be well founded so far as concerns those grounds of infringement, with the exception of the complaint relating to the system of protection for the common pigeon in Carinthia, which is inadmissible.

 Contested grounds of infringement

 Breach of Article 1(1) and (2) of the Directive in Burgenland and Upper Austria

–       Province of Burgenland

 Arguments of the parties

83     The Commission observes that under Paragraph 16(1)(b) of the Bgld NSchLPflG all species of wild birds are protected with the exception of the European starling, as laid down in Paragraph 88a of the Bgld JagdG. The European starling is a species that must be protected in accordance with Article 1 of the Directive.

84     The Commission also contends that Paragraph 88a(2) of the Bgld JagdG does not make the measure authorised by regulation subject to compliance with the conditions for a derogation that are laid down in Article 9 of the Directive.

85     The Republic of Austria states that the European starling is not in principle a species that can be hunted in Burgenland. However, given the considerable damage caused by that species to vines, the provincial legislature considered it necessary to adopt derogating provisions pursuant to Article 9(1)(a) of the Directive. Thus, hunting of the European starling can be permitted only between 15 July and 30 November.

86     According to the Republic of Austria, the protection of vines, referred to in Paragraph 88a(1) of the Bgld JagdG, is consonant with the objective of Article 9(1)(a) of the Directive. Furthermore, the condition that there must be no other satisfactory solution is met, given that flocks of up to 50 000 starlings invade the region’s vineyards each year and the conventional means for driving them away have proved insufficient.

 Findings of the Court

87     It should be noted at the outset, first, that according to Article 1 the Directive seeks the conservation of all species of birds naturally occurring in the wild state in the European territory of the Member States and covers the protection, management and control of these species and, second, that effective bird protection is typically a transfrontier environment problem entailing common responsibilities for the Member States (see, to this effect, Case 247/85 Commission v Belgium [1987] ECR 3029, paragraph 6).

88     Consequently, Article 1 of the Directive is a provision which does not set out programmatic guidance, but contains a binding rule of law that must be transposed into Member States’ national law.

89     The Court has explained that the transposition of Community legislation into national law does not necessarily require the relevant provisions to be enacted in precisely the same words in a specific express legal provision and that a general legal context may be sufficient for the purpose if it actually ensures the full application of the directive in a sufficiently clear and precise manner (see, inter alia, Case 252/85 Commission v France [1988] ECR 2243, paragraph 5).

90     As regards the complaint set out by the Commission, it is to be noted that under the legislation of Burgenland the protection for wild birds is removed entirely from the European starling, a species covered by Article 1 of the Directive, during the period from 15 July to 30 November.

91     As the Advocate General has observed in point 10 of her Opinion, regardless of whether the national provisions at issue could validly be adopted under the third indent of Article 9(1)(a) of the Directive, the total exclusion of a given species from the system of protection prescribed in Article 1 of the Directive – even for a defined, although considerable, period – is incompatible with the latter article.

92     It should be added in this regard that faithful transposition is particularly important in the case of the Directive where management of the common heritage is entrusted to the Member States in their respective territories (see Case 262/85 Commission v Italy [1987] ECR 3073, paragraph 9, and Case C-38/99 Commission v France [2000] ECR I‑10941, paragraph 53).

93     It follows that the legislative provisions of Burgenland to which the present complaint put forward by the Commission relates are incompatible with Article 1(1) and (2) of the Directive.

94     The Commission’s complaint is accordingly well founded.

–       Province of Upper Austria

 Arguments of the parties

95     The Commission observes that Paragraph 27(1) of the Oö NSchG requires an implementing regulation to be adopted and a certain number of conditions to be met in order for wild animals to be protected. However, Article 1 of the Directive lays down an obligation to protect all species of wild birds. In addition, under Paragraph 5(2) of the Oö ArtenschutzVO, the black-billed magpie, the jay, the carrion crow and the hooded crow are entirely excluded from the system of protection provided for by that provision.

96     The Republic of Austria states that Paragraph 27(2) of the Oö NSchG provides for a system of protection for plants and animals, imposed by regulation, that takes account of the requirements laid down by the Directive.

97     It adds that the Directive draws a distinction between native and non-native species and attaches legal consequences to the distinction. Article 11 of the Directive requires the introduction of non-native species to be controlled in order to protect local fauna and flora.

 Findings of the Court

98     The Court pointed out in Commission v Belgium, at paragraph 22, that the protective effect of the Directive must be ensured in relation to all species of birds naturally occurring in the wild state in the European territory of a Member State.

99     Consequently, the protective measures which the Member States are called upon to take by virtue of Article 1 of the Directive must also relate to wild birds whose natural habitat occurs not in the territory of the State in question, but in that of one or more other Member States (see, to this effect, Commission v Belgium, paragraph 22, and Case C-149/94 Vergy [1996] ECR I‑299, paragraphs 17 and 18).

100   As regards the complaint set out by the Commission, it must be found that the system of protection established in Paragraph 27(1) and (2) of the Oö NSchG, in particular the implementing power granted to the authority vested with competence to adopt regulations, is accompanied by numerous conditions relating to the biological characteristics of the species covered. Furthermore, Paragraph 5(2) of the Oö ArtenSchutzVO entirely excludes a number of species from its scope.

101   So far as concerns the Republic of Austria’s argument derived from Article 11 of the Directive, it should be noted that this provision does no more than lay down a specific obligation requiring the Member States to see that the introduction of species of birds which do not occur naturally in the wild state in the European territory of the Member States does not prejudice the local flora and fauna.

102   This article cannot therefore be regarded as a legal basis justifying derogation from the obligations of protection which the Member States owe under Article 1 of the Directive and relate to all species of birds naturally occurring in the wild state in the European territory of the Member States, that is to say, as regards each of those States, both to native species and to species which occur only in other Member States.

103   As is apparent from the judgment in Case 252/85 Commission v France, at paragraph 15, the importance of complete and effective protection of wild birds throughout the Community, irrespective of the areas they stay in or pass through, causes any national legislation which delimits the protection of wild birds by reference to national fauna to be incompatible with the Directive.

104   It follows that Article 1(1) and (2) of the Directive have not been correctly transposed in Upper Austria.

105   The complaint set out by the Commission in this regard must therefore be upheld.

 Breach of Article 5 of the Directive in Burgenland, Carinthia and Upper Austria

–       Province of Burgenland

 Arguments of the parties

106   The Commission contends that the regime concerning the European starling laid down in Paragraph 16(1)(b) of the Bgld NSchLPflG and Paragraph 88a of the Bgld JagdG does not ensure protection for that species which complies with Article 5 of the Directive, at any rate not throughout the year.

107   The Commission also submits that, in accordance with Paragraph 6 of the Bgld ArtenschutzVO, that regulation does not affect fishing and hunting. Paragraph 6 thus allows deliberate damage to nests and to reproduction, resting and wintering areas of protected species.

108   The Republic of Austria explains that the provincial legislature adopted derogating provisions because of significant damage caused by the European starling to vines.

109   It submits that protection of that species is ensured at all stages of its development, including the egg stage. So far as concerns Paragraph 6 of the Bgld ArtenschutzVO, its final sentence cannot be interpreted as establishing a general derogation for hunting and fishing.

 Findings of the Court

110   The general system of protection established in Article 5 of the Directive extends, as its introductory wording states, to all species of birds referred to in Article 1 of the Directive. That system includes, inter alia, a prohibition on deliberately killing, capturing or disturbing birds of protected species.

111   As has been found in paragraphs 90 and 91 of the present judgment, the fact that between 15 July and 30 November the European starling is entirely excluded from the system of protection envisaged by the Directive is incompatible with Article 1 of the Directive.

112   Consequently, the action authorised by the provisions referred to in paragraph 106 of the present judgment is likewise incompatible with the prohibitions set out in Article 5 of the Directive.

113   As for the ground of derogation relied upon by the Republic of Austria, it is true that the prevention of damage to vines can in principle justify the taking of derogating measures, pursuant to the third indent of Article 9(1)(a) of the Directive.

114   However, that provision does not provide a legal basis for a species being entirely removed – even if the removal is temporally limited – from the system of protection laid down by the Directive.

115   Removing a species of bird entirely from the system of protection laid down by the Directive, even for a defined period, could jeopardise the very existence of that species. Thus, the Member States are authorised to derogate from the system of protection for wild birds only if they observe the requirements set out in Article 9(2) of the Directive.

116   As regards the protection of nests and of reproduction, resting and wintering areas, it is to be noted that the objects and areas concerned fall within the scope of the system of protection established in Article 5 of the Directive, in particular Article 5(b) to (d).

117   In the contested legislation it is prohibited, under Paragraph 16(4) of the Bgld NSchLPflG, to pursue, disturb, capture, transport, hold, injure, kill, keep or take away protected animals.

118   However, according to Paragraph 16(2)(d) of that Law, an implementing regulation must indicate the species in respect of which it is prohibited to remove, damage or destroy nests, mating grounds and reproduction, resting and wintering areas.

119   It must be found that, as the Advocate General has stated in point 26 of her Opinion, the combined effect of Paragraph 16(2) and Paragraph 16(4) of the Bgld NSchLPflG is to give rise to a lack of protection for a number of species, so that those provisions must be considered incompatible with Article 5 of the Directive.

120   Nor do the provisions of the Bgld ArtenschutzVO remedy this failure to transpose the Directive. The prohibitions set out in Paragraph 2 of that regulation concern solely the nesting, reproduction, resting and wintering areas of a small number of species, and not those of all protected species.

121   Furthermore, as provided in Paragraph 6, the protective measures laid down by that regulation do not apply to hunting and fishing.

122   However, such activities are liable to cause detriment to the protected areas and objects to which Article 5(b) to (d) of the Directive relates.

123   Since the Republic of Austria has not put forward any line of argument capable of justifying the set of legal rules in question, the failure to fulfil obligations must be considered proven.

124   The complaint alleging breach of Article 5 of the Directive is consequently well founded as regards all of the provisions of Burgenland at issue.

–       Province of Carinthia

 Arguments of the parties

125   The Commission states that Paragraph 68(1) of the KrntJagdG does not transpose the prohibitions set out in Article 5(a) and (e) of the Directive. Paragraph 68(1) merely imposes prohibitions relating to nests and breeding areas. Nor does Paragraph 51(4a) of the KrntJagdG transpose the abovementioned provisions of the Directive.

126   The Republic of Austria asserts that the body of legislative provisions applicable in Carinthia ensures that disturbance of the breeding places of game birds is prohibited. It is also prohibited to destroy the nests and clutches of those species or to gather eggs without authorisation.

 Findings of the Court

127   While the regime laid down in Paragraph 68(1) of the KrntJagdG prescribes protective measures relating to the nests, clutches, eggs and breeding places of game birds, it does not, however, contain any provision relating to the obligation to ensure that the birds referred to in Article 1 of the Directive are not killed, captured or kept, as Article 5(a) and (e) of the Directive require.

128   Nor does Paragraph 51(4a) of the KrntJagdG transpose those provisions of the Directive, since it merely lays down a set of exceptions to the general protection that results from the prohibition on hunting in Paragraph 51(1).

129   It is clear that the prohibitions prescribed in Article 5(a) and (e) of the Directive, namely the prohibitions on killing, capturing or keeping protected birds, are not laid down in the national provisions mentioned in paragraph 125 of the present judgment.

130   The Commission’s complaint must therefore be held to be well founded in this regard.

–       Province of Upper Austria

 Arguments of the parties

131   The Commission submits that Paragraph 27(1) of the Oö NSchG contains measures of a programmatic nature which are limited to native species: under the power which it establishes for the adoption of regulations, the conditions laid down in order for protection to be conferred include that the species concerned must be rare in the countryside of the area, its population must be threatened or its conservation must be in the public interest.

132   The Commission adds that, under Paragraph 5(2) of the Oö ArtenschutzVO, the black-billed magpie, the jay, the carrion crow and the hooded crow are entirely excluded from the system of protection provided for by that provision.

133   The Republic of Austria states that Paragraph 27(2) of the Oö NSchG provides for the protection of plants and animals by way of regulation, regard being had to, inter alia, Articles 5 to 7 and 9 of the Directive. This objective of the legislature cannot in any way be qualified by the reference to Paragraph 27(1) of the Oö NSchG.

134   It adds that the Directive draws a distinction between native and non-native species and attaches legal consequences to the distinction. Article 11 of the Directive requires the introduction of non-native species to be controlled in order to protect local fauna and flora.

 Findings of the Court

135   As is evident from paragraph 110 of the present judgment, the scope of Article 5 of the Directive extends to all the species referred to in Article 1. Consequently, the exclusion of the black-billed magpie, the jay, the carrion crow and the hooded crow from the system of protection for species that is applicable in Upper Austria is not consistent with the Directive.

136   Furthermore, limiting the number of protected species by reference to certain conditions that relate to biological characteristics and to considerations of public interest is likewise incompatible with the Directive.

137   The Republic of Austria’s argument that the authority vested with the power to adopt regulations must act in a manner consistent with the Directive cannot alter that conclusion. Suffice it to state that implementation in accordance with a directive’s provisions by that authority cannot in itself achieve the clarity and precision needed to meet the requirement of legal certainty (see, to this effect, Case C-236/95 Commission v Greece [1996] ECR I‑4459, paragraphs 12 and 13, and Case C-144/99 Commission v Netherlands [2001] ECR I‑3541, paragraph 21).

138   Nor can the argument derived by the Republic of Austria from Article 11 of the Directive be accepted. As is clear from paragraphs 101 and 102 of the present judgment, this article cannot be regarded as a legal basis justifying derogation from the obligations of protection which the Member States owe under Article 1 of the Directive.

139   Consequently, the complaint alleging breach of Article 5 of the Directive in Upper Austria must be upheld.

 Breach of Article 6(1) of the Directive in Upper Austria

–       Arguments of the parties

140   The Commission submits that, under Paragraph 5(2) of the Oö ArtenschutzVO, the black-billed magpie, the carrion crow and the hooded crow are excluded from the system of protection provided for in Article 6(1) of the Directive.

141   The Republic of Austria states that the species referred to have been omitted from the list of birds that may be hunted in Austria by virtue of Annex II to the Directive, even though the experts agree that it would be appropriate to include those species for Austria in the annex.

–       Findings of the Court

142   Article 6(1) of the Directive provides that the Member States are to prohibit, for all the bird species referred to in Article 1 of the Directive, the sale, transport for sale, keeping for sale and offering for sale of live or dead birds.

143   With regard to the complaint set out by the Commission, it must be found that the exclusion of the abovementioned species from the field of application of Paragraph 5(2) of the Oö ArtenschutzVO allows bird-trading activities which are prohibited by Article 6(1) of the Directive.

144   In these circumstances, the Republic of Austria’s line of argument concerning the relevance of Annex II to the Directive with regard to the complaint set out by the Commission is immaterial.

145   That annex relates to Article 7 of the Directive, which concerns the situation of the species that may be hunted, and not to the system of protection established in Article 6(1) of the Directive.

146   Thus, whatever hunting regime may be applicable, the Member States are required to ensure that the prohibitions on trading laid down in Article 6(1) are transposed.

147   It is clear from the foregoing that those prohibitions have not been implemented in Upper Austria as regards the three bird species referred to above.

148   Consequently, the action must be upheld in this regard.

 Breach of Article 7(1) of the Directive in Carinthia and Upper Austria

–       Province of Carinthia

 Arguments of the parties

149   The Commission submits that, under Paragraph 9(2) of the KrntJagdVO, the carrion crow, the jay and the black-billed magpie may be hunted from 1 July to 15 March. This regime is incompatible with the Directive’s requirements regarding hunting.

150   The Republic of Austria states that the Community legislature failed, in Annex II/2 to the Directive, to include corvids in the list of species that may be hunted in the territory of the Republic of Austria.

–       Findings of the Court

151   In accordance with Article 7(1) and (3) of the Directive, the species referred to in Annex II/2 may be hunted, under national legislation, in the Member States in respect of which they are indicated.

152   It is not in dispute that the species covered by the Commission’s complaint are not among the species of birds that may be hunted in Austria by virtue of Annex II/2.

153   Consequently, establishing a hunting season for those species is incompatible with Article 7(1) of the Directive.

154   It should be added that neither the argument derived by the Republic of Austria from an alleged omission on the part of the Community legislature as regards the content of Annex II/2 to the Directive nor the fact that the Republic of Austria is seeking to secure the inclusion of the species concerned in the list of species that may be hunted in its territory are relevant for the purposes of assessing the merits of the complaint put forward by the Commission.

155   It follows that Article 7(1) of the Directive has not been correctly transposed in Carinthia.

156   The Commission’s action must accordingly be upheld in this regard.

–       Province of Upper Austria

 Arguments of the parties

157   The Commission points out that, as provided in Paragraph 5(2) of the Oö ArtenschutzVO, the black-billed magpie, the jay, the carrion crow and the hooded crow are not included among the species that must be protected. This regime amounts to a derogation from Article 7(1) of the Directive, which provides that only the species referred to in Annex II/2 may be hunted in Austria.

158   The Republic of Austria refers to the line of argument which it set out on the complaint put forward regarding transposition of the same provision of the Directive in Carinthia (see paragraph 150 of the present judgment).

159   It also submits that, in any event, the abovementioned legislation is applied in a manner consistent with the Directive.

 Findings of the Court

160   Reference should be made, with regard to the merits of the complaint set out by the Commission, to paragraph 154 of the present judgment which concerns the relevance of Annex II/2 to the Directive for the purpose of applying Article 7(1) of the Directive in Austria.

161   It follows therefrom that Paragraph 5(2) of the Oö ArtenschutzVO must be regarded as incompatible with that provision of the Directive.

162   As regards the Republic of Austria’s argument to the effect that application of the legislation is consistent with the Directive, it need only be stated 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 valid fulfilment of the obligations to transpose a directive (see, to this effect, Case C-197/96 Commission v France [1997] ECR I‑1489, paragraph 14; Case C-358/98 Commission v Italy [2000] ECR I‑1255, paragraph 17; and Case C-33/03 Commission v United Kingdom [2005] ECR I‑1865, paragraph 25).

163   Consequently, the complaint set out by the Commission in this regard must be upheld.

 Breach of Article 7(4) of the Directive in Burgenland, Carinthia, Lower Austria, Upper Austria, the Province of Salzburg, Tyrol, Vorarlberg and the Province of Vienna

–       Province of Burgenland

 Arguments of the parties

164   The Commission states that, under Paragraph 88b(2) of the Bgld JagdG, woodcock may be hunted from 1 March to 15 April in accordance with the form of hunting called ‘Schnepfenstrich’. In addition, the periods of protection set in Paragraph 76 of the Bgld JagdVO derogate from the requirements under Article 7(4) of the Directive as regards the wood pigeon (protected from 16 April to 30 June whereas, according to the Commission, it should be from 1 February to 31 August), the collared dove (protected from 16 April to 30 June, instead of from 1 March to 20 October), the turtle dove (protected from 1 November to 30 June, instead of from 11 April to 31 August) and the woodcock (protected from 1 January to 28 February and from 16 April to 30 September, instead of from 20 February to 10 September).

165   The Republic of Austria states that the periods of protection set in Paragraph 76 of the Bgld JagdVO take account of the climatic conditions in that region. Also, because of the selective hunting practised in Burgenland, hens, in particular in the case of the woodcock, are not disturbed at any stage of the period of reproduction. Furthermore, the periods of protection laid down take account of the conditions for derogation which are set out in Article 9 of the Directive. Finally, since, in the case of woodcocks, it is only the cock that may be hunted, a measure consistent with Article 9 is at issue.

 Findings of the Court

166   In its application, the Commission set out hunting calendars for the woodcock, wood pigeon, collared dove and turtle dove which differ considerably from the hunting calendars laid down by the national provisions referred to in paragraph 164 of the present judgment.

167   The calendars diverge not only as regards the total duration of the periods of protection but also as to the dates upon which they begin and end.

168   In assessing the merits of the complaint set out by the Commission, it should be noted that the periods of protection to be observed pursuant to Article 7(4) of the Directive must be set taking account of the scientific data that are authoritative in the ornithological field (see, in particular, Case C-157/89 Commission v Italy [1991] ECR I‑57, paragraphs 15, 19 and 24).

169   However, the application contains no data of this kind capable of substantiating the appropriateness of the periods suggested by the Commission in light of the reference parameters set out in Article 7(4) of the Directive, such as the principles of wise use and ecologically balanced control of the species of birds concerned.

170   It should be added that it was all the more necessary to submit such scientific data because the Republic of Austria stated that the hunting seasons were set in Burgenland having regard to the particular climatic conditions in that region.

171   In that context, the Commission had the task of adducing appropriate scientific information in order to establish that the hunting regimes at issue are incompatible with Article 7(4) of the Directive.

172   Given the absence of such information, the action must be dismissed in this regard.

–       Province of Carinthia

 Arguments of the parties

173   The Commission states, first, that for a number of species Paragraph 9(2) of the KrntJagdVO sets hunting seasons which fall within the various stages of reproduction and rearing, without sufficient reference being made to the conditions for derogation which are laid down in Article 9 of the Directive. The species concerned are the capercaillie (the hunting of which is authorised from 10 to 31 May whereas, according to the Commission, it should be from 1 October to 28 February), the black grouse (the hunting of which is authorised from 10 to 31 May, instead of from 21 September to 31 March), the woodcock (the hunting of which is authorised from 1 September to 31 December and from 16 March to 10 April, instead of from 11 September to 19 February), the common coot (the hunting of which is authorised from 16 August to 31 January, instead of from 21 September to 10 March), the wood pigeon (the hunting of which is authorised from 1 August to 31 December and from 16 March to 10 April, instead of from 1 September to 31 January) and the collared dove (the hunting of which is authorised from 1 August to 31 December and from 16 March to 10 April, instead of from 21 October to 20 February).

174   The Commission observes second, as regards springtime hunting in particular, that the hunting seasons thus fixed include the mating season of the capercaillie, black grouse and woodcock.

175   The Commission submits that it is not possible to distinguish between, on the one hand, the mating season and, on the other, the period of reproduction and rearing. Consequently, the national provision referred to in paragraph 173 of the present judgment is contrary to Article 7(4) of the Directive.

176   The Commission stresses that the mating season forms a part of the period of reproduction and rearing. The fact that the mating season is prior to reproduction in the narrow sense cannot have the effect of excluding it, for the species referred to, from the field of application of Article 7(4) of the Directive.

177   The Commission submits, third, that Paragraph 3 of the KrntJagdG, which governs the criteria for authorising hunting plans, makes no reference to the conditions and criteria for derogation set out in Article 9 of the Directive.

178   The Republic of Austria acknowledges that the hunting seasons laid down in Carinthia are not consistent with the Directive so far as concerns the common coot, wood pigeon and collared dove.

179   On the other hand, it submits that hunting the cock of the species capercaillie, black grouse and woodcock on mating grounds is unconnected with the period of reproduction, hatching and rearing. The breeding of these species takes place somewhere other than on the mating grounds. In addition, restrictive provisions guarantee that only a small number of males are taken and that females are protected during the breeding period.

180   The Republic of Austria states that the hunting regime laid down by Paragraph 51(2) of the KrntJagdG corresponds to the requirements for protection under Article 7(4) of the Directive. The hunting seasons are set in such a way that selective hunting of game birds is possible, in small numbers and under strict conditions of supervision, if there is no other satisfactory solution and the hunting is not detrimental to the maintenance of the populations concerned.

181   The Republic of Austria explains that the capercaillie, the black grouse and the woodcock are subject to planning of the animals to be shot which is consistent with the Directive. The hunting of those species is authorised on the basis of a precise census of the population for each hunting area and the shooting of animals is authorised on an individual basis. In addition, the authorisations are granted by administrative decision to persons having the right to hunt.

182   The Republic of Austria also states that, because of the restrictive provisions relating to monitoring of the populations, to the number of individual kills and to the shooting seasons, only a small number of cocks of the species in question are killed.

183   It stresses, finally, that the consequence of a general prohibition on hunting the foregoing species during the mating season would be that hunters would lose interest in those species of game birds and abandon efforts to conserve the species’ habitat. This would have an immediate effect on the population of the species, which need a specific habitat, namely forest pasture, which has become considerably scarcer.

 Findings of the Court

184   Since the defendant has acknowledged that the hunting seasons set in Carinthia for the common coot, wood pigeon and collared dove are incompatible with the Directive, the present complaint must be held well founded in respect of those species.

185   So far as concerns the woodcock, hunting is authorised not only from the end of summer to the beginning of winter, that is to say from 1 September to 31 December, but also from the end of winter to the beginning of spring, that is to say from 16 March to 10 April. The hunting season is thus open for nearly five months.

186   A hunting regime that extends over so long a period cannot in any event be considered capable of being covered by Article 9 of the Directive.

187   Because of its nature and scope, such a regime is incompatible with the protective objectives pursued by the Directive.

188   Given that the defendant has not put forward any ground of derogation set out in Article 9 of the Directive that would be capable of justifying the hunting regime in question, the failure to fulfil obligations must be considered proven in this respect too.

189   On the other hand, the legislation in question provides only for a spring hunting season in the case of capercaillie and black grouse.

190   However, this season corresponds in part to the mating season of the species concerned.

191   It must therefore be determined whether the mating season is covered by the prohibitions laid down in Article 7(4) of the Directive.

192   The protective regime established in this provision is defined broadly, by reference to the specific biological characteristics of the species concerned, given that it concerns, in addition to the rearing season, the various stages of reproduction.

193   Only such a view corresponds to the objective of Article 7(4) of the Directive, which, as the Court has previously stated, is to secure a complete system of protection in the periods during which the survival of wild birds is particularly under threat (see Case C-157/89 Commission v Italy, paragraph 14, and Case C‑435/92 Association pour la protection des animaux sauvages and Others [1994] ECR I-67, paragraph 9). This case-law reflects the consideration that any action during the periods that are connected with the reproduction of birds is liable to affect their reproduction, even if only a part of their population is concerned.

194   That is also true of the mating season, during which the species concerned are particularly exposed and vulnerable.

195   It must therefore be concluded that the mating season forms part of the period during which Article 7(4) of the Directive prohibits, in principle, all hunting.

196   With regard to the question whether the derogations set out in Article 9 of the Directive are capable of applying to situations governed by the specific protective requirements prescribed in Article 7(4) of the Directive, it should be noted that the Court held in Case C-182/02 Ligue pour la protection des oiseaux and Others [2003] ECR I‑12105, at paragraph 9, that Article 9(1)(c) of the Directive permits authorisation, in compliance with the other requirements of Article 9, of the capture, keeping or other judicious use of birds during the periods mentioned in Article 7(4) of the Directive, during which the survival of wild birds is at particular risk.

197   Consequently, the hunting of wild birds for recreational purposes during the periods mentioned in Article 7(4) of the Directive may, subject to compliance with the requirements laid down in Article 9(2), constitute a ‘judicious use’ within the meaning of Article 9(1)(c) (see, to this effect, Ligue pour la protection des oiseaux sauvages and Others, paragraph 11).

198   However, the burden of proof regarding compliance with these requirements in respect of each derogation rests with the national authority taking the decision (see, to this effect, Case C-344/03 Commission v Finland [2005] ECR I‑11033, paragraphs 39 and 60, and Case C-60/05 WWF Italia and Others [2006] ECR I‑5083, paragraph 34).

199   With regard to determining whether the hunting regime laid down in Paragraph 51(2) of the KrntJagdG is consistent with Article 9(1)(c) of the Directive, particularly so far as concerns the requirement that derogations be limited to ‘small numbers’, it should be remembered that the Member States, when adopting measures transposing the latter provision, must ensure that, in all cases of application of the derogation provided for therein and for all the protected species, authorised hunting does not exceed a ceiling consistent with the restriction on that hunting to small numbers, and that ceiling must be determined on the basis of strict scientific data (see WWF Italia and Others, paragraph 29).

200   Even if it is true that, as the defendant asserts, hunting of capercaillie and black grouse is subject to planning of the animals to be shot, the abovementioned national provision does not, however, specify what in this context is constituted by ‘small numbers’ within the meaning of Article 9(1)(c) of the Directive.

201   In order for the Directive to be transposed in accordance with Community law, the authorities competent to authorise derogations in respect of birds of a given species must be able to rely on criteria which are sufficiently precise as to the quantitative ceilings to be complied with (see, to this effect, WWF Italia and Others, paragraph 36).

202   Consequently, the hunting regime laid down in Paragraph 51(2) of the KrntJagdG is not consistent with Article 9(1)(c) of the Directive.

203   It should be added that the Republic of Austria has acknowledged that the species in question are also present in the territory concerned during the autumn and winter, but states that hunting conditions at that time of year are less favourable. However, a circumstance of that kind is irrelevant having regard to the protective legal framework established by the Directive.

204   Accordingly, Paragraph 51(2) of the KrntJagdG is also not consistent with the introductory part of Article 9(1) of the Directive, under which derogations from the provisions for the protection of birds may be granted only if there is no other satisfactory solution (see, to this effect, Case C-135/04 Commission v Spain [2005] ECR I-5261, paragraph 18).

205   Finally, in light of the line of argument put forward by the Republic of Austria as to the need to authorise hunting of capercaillie and black grouse so that the hunters may conserve and maintain their habitat, it is to be observed that while the protection of flora is admittedly one of the grounds of derogation set out in the fourth indent of Article 9(1)(a) of the Directive, protection of that habitat can be ensured regardless of hunting (see, to this effect, Commission v Finland, paragraphs 35 and 40).

206   Indeed, as the Advocate General has observed in point 61 of her Opinion, the Member States are under an obligation to ensure such protection, by virtue of Article 4 of the Directive, both within and outside special protection areas for birds.

207   The Republic of Austria’s arguments must therefore be rejected in their entirety.

208   It is accordingly clear that hunting legislation in Carinthia regarding all the species covered by this complaint is not consistent with the Directive.

209   The Commission’s action is therefore well founded in this regard.

–       Province of Lower Austria

 Arguments of the parties

210   The Commission submits that Paragraph 22 of the Nö JagdVO sets hunting seasons for a number of species which encompass the rearing season or the stages of reproduction of the species concerned. These species are the capercaillie (the hunting of which is authorised from 1 to 31 May in even-numbered years whereas, according to the Commission, it should be from 1 October to 28 February), the black grouse (the hunting of which is authorised from 1 to 31 May in odd-numbered years, instead of from 21 September to 31 March), the Rackelhahn (the hunting of which is authorised from 1 January to 31 December, instead of from 1 October to 28 March), the woodcock (the hunting of which is authorised from 1 September to 31 December and from 1 March to 15 April, instead of from 11 September to 19 February) and the wood pigeon (the hunting of which is authorised from 1 August to 31 January, instead of from 1 September to 31 January).

211   The Republic of Austria admits that the opening of the autumn hunting season for the wood pigeon should be set at 1 September, as the Commission contends.

212   So far as concerns the hunting regime for capercaillie, black grouse and woodcock, the Republic of Austria refers to all its arguments relating to the transposition of Article 7(4) of the Directive in Carinthia (see paragraphs 179 to 183 of the present judgment).

213   It recalls that, as regards these species, the spring hunting season is in the mating season, which is prior to the reproduction and rearing periods. Consequently, the system of specific protection established by Article 7(4) of the Directive cannot apply.

214   In the Republic of Austria’s submission, the hunting seasons for the Rackelhahn cannot be covered by the present action, since this species was not referred to in the pre-litigation procedure.

215   It also contends that cocks of this species are larger in size than black grouse cocks and accordingly disturb them when the mating display is performed.

 Findings of the Court

216   In view of the defendant’s response to the complaint concerning the hunting season for the wood pigeon, it must be found to have failed to fulfil its obligations in this regard.

217   The Rackelhahn comes from the crossing of two species and, irrespective of whether it may be regarded as a species in its own right in biological terms, it can in any event be distinguished from the capercaillie and black grouse.

218   Accordingly, the hunting regime for the Rackelhahn in Lower Austria should have been mentioned in the letter of formal notice given that, according to the Court’s case-law, this letter delimits the subject-matter of the dispute (see, to this effect, Case C-441/02 Commission v Germany [2006] ECR I‑3449, paragraphs 59 and 60, and Case C‑150/04 Commission v Denmark [2007] ECR I-0000, paragraphs 66 and 67).

219   The Commission’s action must therefore be considered inadmissible in this regard.

220   With regard to the complaint alleging that the woodcock is not sufficiently protected, it is to be observed that hunting of this species is authorised from 1 March to 15 April and from the end of summer to the beginning of winter.

221   In allowing the hunting of this species over more than five months, the regime laid down in Paragraph 22 of the Nö JagdVO puts excessive pressure on the population concerned.

222   As is clear from paragraphs 186 and 187 of the present judgment, such a regime cannot in any event be covered by Article 9 of the Directive.

223   So far as concerns the capercaillie and black grouse, as is apparent from paragraphs 194 and 195 of the present judgment the springtime hunting falls within the mating season of these species which is a period in respect of which Article 7(4) of the Directive requires specific protective measures.

224   While it is true that, for these two species, no autumn hunting is envisaged and springtime hunting is limited to one year in two, the Republic of Austria has not, however, provided specific information as to the way in which compliance with Article 9(1)(c) of the Directive is ensured, in particular as regards the limitation of the birds taken to ‘small numbers’.

225   As follows from paragraphs 199 and 201 of the present judgment, the competent authorities of the Member State concerned have the task of ensuring, with sufficient legal precision and on the basis of recognised scientific data, that the quantitative ceiling is not in any event exceeded and, therefore, that the species covered are fully protected (see, to this effect, also Case C-79/03 Commission v Spain [2004] ECR I‑11619, paragraphs 41 and 43).

226   Such detail does not, however, appear in the contested legislation.

227   This complaint on the part of the Commission is therefore well founded as regards all the species referred to with the exception of the Rackelhahn, in respect of which it is inadmissible.

–       Province of Upper Austria

 Arguments of the parties

228   The Commission states that, under Paragraph 1(1) of the Oö SchonzeitenVO, hunting is authorised during the rearing season or stages of reproduction as regards, first, cocks of the species capercaillie (hunting being authorised from 1 to 31 May whereas, according to the Commission, it should be from 1 October to 28 February), black grouse (hunting being authorised from 1 to 31 May, instead of from 21 September to 31 March) and Rackelhahn (hunting being authorised from 1 to 31 May, instead of from 1 October to 28 March) and, second, the woodcock (hunting being authorised from 1 October to 30 April, instead of from 11 September to 19 February).

229   The Republic of Austria states that springtime hunting of capercaillie, black grouse and Rackelhahn takes place during the mating season and therefore does not fall within the scope of Article 7(4) of the Directive.

230   The Republic of Austria refers in this regard to its arguments reproduced in paragraphs 179 to 183 of the present judgment concerning the hunting regime in force in Carinthia.

231   It observes with regard to the woodcock that the hunting seasons laid down derogate from the Directive solely as regards the males, since in reality it is they alone that are hunted during the mating season. Consequently, the females are not disturbed at any stage of the period of reproduction. Furthermore, the specific biological characteristics of this species provide a guarantee that this hunting regime is compatible with the principles of wise use and of balanced control of the populations concerned.

 Findings of the Court

232   With regard to the complaint relating to protection of the capercaillie and black grouse, it is to be noted that, as follows from paragraphs 194 and 195 of the present judgment, the hunting season as set in Upper Austria for these two species corresponds to a period which must be covered by specific protection pursuant to Article 7(4) of the Directive.

233   While it is true that only springtime hunting is authorised for those species, the Republic of Austria has not advanced evidence or arguments capable of establishing that this regime would meet the requirements set out in Article 9(1)(c) of the Directive and as explained in the case-law (see paragraphs 199 and 201 of the present judgment). In particular, the legislation at issue does not make it clear to what extent the regime would ensure that the birds taken are limited to ‘small numbers’.

234   So far as concerns the complaint relating to the regime for hunting the Rackelhahn, a bird which results from the crossing of the capercaillie and the black grouse, it is to be remembered that the Directive, as provided in Article 1, has the objective of conserving all species of birds naturally occurring in the wild state in the European territory of the Member States to which the Treaty applies.

235   As the Advocate General has observed in point 93 of her Opinion, a biological species is the totality of all individual beings which form a reproducing community.

236   In its defence, however, the Republic of Austria disputed that mating involving a Rackelhahn, whether male or female, can yield offspring in the wild, and it has not been contradicted by the Commission on this point.

237   The Commission has therefore not established that, as regards the Rackelhahn, a reproducing community exists that would allow it to be considered a species in its own right, thereby falling within the scope of the Directive.

238   The complaint relating to the regime for hunting the Rackelhahn in Upper Austria must therefore be dismissed as unfounded.

239   As regards the complaint relating to the regime for hunting the woodcock, this species may be hunted not only in the spring, but also in autumn and winter.

240   Because of the extent of the hunting seasons which it lays down, such a regime is, as follows from paragraphs 186 and 187 of the present judgment, incompatible with the protective requirements of the Directive and cannot be justified on the basis of Article 9 of the Directive.

241   Finally, with regard to the distinction drawn by the Republic of Austria between males and females of the species concerned, it need merely be noted that there is no legal basis for this distinction in the Directive’s provisions relating to the scope of the protection that wild birds must enjoy.

242   The Commission’s complaint must therefore be upheld as regards the hunting regime in force in Upper Austria for all the species referred to with the exception of the Rackelhahn.

–       Province of Salzburg

 Arguments of the parties

243   The Commission states that the effect of Paragraph 54(1) of the Sbg JagdG in conjunction with Paragraph 1 of the Sbg SchonzeitenVO is that hunting of a number of species is authorised during the period of reproduction or of rearing, that is to say periods during which hunting is in principle prohibited, without the conditions and criteria for derogation laid down in Article 9 of the Directive being met. The species in question are the capercaillie (the hunting of which is authorised from 1 to 31 May whereas, according to the Commission, it should be from 1 October to 28 February), the black grouse (the hunting of which is authorised from 1 May to 15 June, instead of from 21 September to 31 March), the Rackelhahn (the hunting of which is authorised from 1 May to 15 June, instead of from 1 October to 28 March) and the woodcock (the hunting of which is authorised from 1 March to 15 April and from 1 October to 31 December, instead of from 11 September to 19 February).

244   The Commission notes that Paragraph 60(3a) of the Sbg JagdG confines itself to the setting of a minimum number and, as the case may be, a maximum number of birds to be shot. No possibility thus exists, when shooting plans are adopted, of assessing the grounds for derogation in the light of Article 9 of the Directive.

245   So far as concerns hunting of the capercaillie, black grouse and Rackelhahn, the Republic of Austria essentially refers to its arguments relating to the regime for the protection of those species in Carinthia (see paragraphs 179 to 183 of the present judgment).

246   The Republic of Austria explains that, when adopting the regulation relating to shooting plans, the competent authorities take account of the conditions and criteria in accordance with which it is permitted to derogate from the prohibitions laid down by the Directive, pursuant to Article 9(1) and (2) thereof.

247   It states that, as provided in Paragraph 60(3a) of the Sbg JagdG, the maximum numbers to be shot must be set so that a population that corresponds to the principles in Paragraph 3 of the Sbg JagdG is achieved or conserved. The regulation relating to shooting plans is, moreover, adopted on the basis of precise particulars of damage recorded and of reports and estimates in respect of the population of the species concerned. The figures stated in the regulation are to be understood as maximum numbers to be shot.

248   The Republic of Austria adds that the authorised acts relate only to the bird species referred to in Paragraph 59(1) of the Sbg JagdG, that is to say those which are not listed in Annex II to the Directive as species that may be hunted in Austria. However, no shooting plan has been drawn up in this connection, so that the said bird species are covered by a general prohibition on hunting. Their hunting may be authorised, in certain cases, only on the basis of Paragraph 104(4) of the Sbg JagdG, but solely outside the periods of protection established by the Directive.

 Findings of the Court

249   As is apparent from the findings set out in paragraphs 186 and 187 of the present judgment, hunting of the woodcock in springtime, over and above the hunting in autumn also authorised for this species, cannot be justified on the basis of Article 9(1)(c) of the Directive.

250   With regard to determining whether the conditions and criteria for derogation are satisfied in relation to hunting capercaillie and black grouse, for which only springtime hunting is authorised, it should be noted that Paragraph 59(1) of the Sbg JagdG applies only to species which are not listed in Annex II to the Directive as species which may be hunted in Austria.

251   The capercaillie and black grouse are mentioned in that annex. Those two species are therefore not covered by the planning of birds to be shot.

252   With regard to ascertaining whether the hunting of those species is capable of being justified under Article 9 of the Directive, it must be found that the defendant has not established that the legislation of the Province of Salzburg is consistent with the ground of derogation laid down in Article 9(1)(c) of the Directive.

253   Paragraph 59(1) of the Sbg JagdG entrusts assessment of a shooting plan to the authority vested with the power to adopt regulations, without the exercise of that power being limited by binding quantitative levels.

254   Consequently, the action is well founded so far as concerns the hunting regime applicable to the woodcock, capercaillie and black grouse.

255   So far as concerns the provisions of the Province of Salzburg relating to hunting of the Rackelhahn, as is evident from paragraphs 234 to 237 of the present judgment it has not been established that that species falls within the scope of the Directive.

256   The complaint relating to hunting of the Rackelhahn in the Province of Salzburg must therefore be dismissed as unfounded.

257   It follows from the foregoing that the present complaint is well founded as regards the hunting regime of the Province of Salzburg in respect of all the species referred to with the exception of the Rackelhahn.

–       Province of Tyrol

 Arguments of the parties

258   The Commission observes that Paragraph 1(1) of the DurchfVO Tiroler JagdG sets hunting seasons which encroach upon the reproduction and rearing periods so far as concerns the capercaillie (the hunting of which is authorised from 1 to 15 May in odd-numbered years whereas, according to the Commission, it should be from 1 October to 28 February) and the black grouse (the hunting of which is authorised from 10 to 31 May, instead of from 21 September to 31 March), thereby derogating from Article 7(4) of the Directive.

259   The Commission points out that if hunting of the capercaillie and black grouse, which are species under particular threat in Austria, were to take place only by way of exception, in accordance with Article 9 of the Directive, it would be necessary to ensure compliance with the conditions and criteria for derogation laid down in that provision.

260   The Republic of Austria refers to its arguments in relation to Carinthia on the regime for springtime hunting of the species referred to, which takes place in their mating season (see paragraphs 179 to 183 of the present judgment).

261   It also states that it is difficult to hunt in Tyrol at the end of autumn or in winter and that, in any event, the populations of those species are not threatened in this region.

 Findings of the Court

262   With regard to the scope of the protective regime laid down in Article 7(4) of the Directive, as is apparent from paragraphs 194 and 195 of the present judgment that regime extends to the mating season of the capercaillie and black grouse.

263   With regard to the Republic of Austria’s argument regarding the difficulty of engaging in hunting in Tyrol in the autumn and winter, suffice it to state that such a consideration cannot be linked to any basis for derogation provided for in Article 9 of the Directive.

264   The action is thus well founded in relation to the hunting seasons for capercaillie and black grouse as set in Paragraph 1(1) of the DurchfVO Tiroler JagdG.

–       Province of Vorarlberg

 Arguments of the parties

265   The Commission states that the hunting season set in Paragraph 27(1) of the Vlbg JagdVO is not compatible with the requirements laid down in Article 7(4) of the Directive as regards the black grouse. The season was set as being from 11 to 21 May whereas, according to the Commission, it should have been from 21 September to 31 March. It is thus during the mating season of the species concerned.

266   The Republic of Austria states that for species of game birds – with the exception of the black grouse – the Vlbg JagdVO sets hunting seasons consistent with the Directive. It refers in this regard to its arguments concerning transposition of the Directive in Carinthia (see paragraphs 179 to 183 of the present judgment).

 Findings of the Court

267   In assessing the merits of the complaint set out by the Commission, it need merely be stated that, as follows from paragraphs 194 and 195 of the present judgment, the Republic of Austria has not established that the national legislation covered by this complaint satisfies the conditions and criteria for derogation set out in Article 9 of the Directive with regard to the specific protective requirements laid down in Article 7(4).

268   The Commission’s complaint relating to the hunting season for black grouse as set in Paragraph 27(1) of the Vlbg JagdVO is accordingly well founded.

–       Province of Vienna

 Arguments of the parties

269   The Commission states that Paragraph 69 of the Wiener JagdG in conjunction with Paragraph 1(1) of the Wiener SchonzeitenVO sets a hunting season for the woodcock that encroaches upon the reproduction and rearing periods, which are in principle covered by a prohibition under Article 7(4) of the Directive, and that reference is not made to the relevant conditions regarding derogation which are laid down in Article 9 of the Directive.

270   The Republic of Austria contends that the hunting regime referred to by this complaint is consistent with the derogation provided for in Article 9(1)(c) of the Directive.

 Findings of the Court

271   Having regard to the case-law recalled in paragraph 198 of the present judgment, it is to be observed that, for the Province of Vienna, the Republic of Austria has not advanced evidence or arguments capable of establishing that the conditions and criteria set out in Article 9 of the Directive are satisfied, in particular so far as concerns the limitation on birds taken to ‘small numbers’, in accordance with Article 9(1)(c), and the lack of another satisfactory solution, in accordance with the introductory part of Article 9(1).

272   Consequently, the action must be upheld in relation to the hunting season for the woodcock in the Province of Vienna as set by Paragraph 69 of the Wiener JagdG in conjunction with Paragraph 1(1) of the Wiener SchonzeitenVO.

 Breach of Article 8 of the Directive in Lower Austria

–       Arguments of the parties

273   The Commission submits that Paragraph 20(4) of the Nö NSchG does not contain provisions which specify sufficiently the means of hunting prohibited by virtue of Article 8 of the Directive, read in conjunction with Annex IV(a) thereto. There is, on the contrary, only a general reference to the means, arrangements or methods authorised for capture or killing.

274   The Commission contends that, even if the competent authority is under an obligation to act in compliance with the Directive, an administrative practice that complies with a directive does not meet the requirements for transposing Community law appropriately.

275   The Republic of Austria submits that Paragraph 20(4) of the Nö NSchG, which permits protected animals to be killed on the basis of special authorisations, meets the requirements of Article 8 of the Directive.

276   It considers that, as a result of the legislative technique chosen with regard to the objective pursued by Paragraph 20(4) of the Nö NSchG, the protection required by the Directive is ensured. The competent authorities are obliged to prescribe in decisions granting special authorisation the means, arrangements or methods for capture or killing whose use is permitted. Those authorities must take their decisions in a manner consistent with the Directive and, given the principle that national law should be applied uniformly, also in observance of the prohibitions laid down in Paragraph 95 of the Nö JagdG.

–       Findings of the Court

277   As has been pointed out in paragraph 92 of the present judgment, faithful transposition is particularly important in the case of the Directive where management of the common heritage is entrusted to the Member States in their respective territories (see Case 236/85 Commission v Netherlands [1987] ECR 3989, paragraph 5).

278   Consequently, the requirements for correct transposition of the Directive are not met by pleading a practice that complies with the Directive.

279   In particular, in the case of the means, arrangements or methods used for capture or killing, the Member States have the task of drawing up, with binding legal force, the list of unlawful practices (see, to this effect, Case 236/85 Commission v Netherlands, paragraphs 27 and 28).

280   It is to be added that the prohibitions laid down by the Directive on using certain means of capture when hunting must result from legislative provisions. In view of the principle of legal certainty the relevant prohibitions must be reproduced in mandatory legal instruments (see, to this effect, Case C-339/87 Commission v Netherlands [1990] ECR I‑851, paragraph 22).

281   The fact that a practice incompatible with the Directive is not carried on does not release the Member State in question from its obligation to adopt laws or regulations in order to ensure that the provisions of the Directive are adequately transposed. In addition, the fact that in a Member State a particular means of hunting is unknown does not constitute a reason for not transposing that prohibition into national law (see Case C-339/87 Commission v Netherlands, paragraph 32).

282   Nor can the reference to Paragraph 95 of the Nö JagdG be relevant, given that this Law covers only wild animal species that may be hunted, and not all the species of wild birds which fall within the scope of the Directive.

283   Article 8 of the Directive has consequently not been correctly transposed in Lower Austria.

284   The Commission’s action is thus well founded in this regard.

 Breach of Article 9(1) and (2) of the Directive in Burgenland, Lower Austria, Upper Austria, the Province of Salzburg and Tyrol

–       Province of Burgenland

 Arguments of the parties

285   The Commission states that, under Paragraph 88a(1) of the Bgld JagdG, hunting of the European starling is permissible from 15 July to 30 November and that, under Paragraph 88a(2), where the appearance of birds of this species in very large numbers is anticipated, the need for that measure is established by implementing regulation. This authorisation to adopt a regulation does not set out sufficiently the conditions and criteria for derogation that are listed in Article 9 of the Directive.

286   The Republic of Austria submits that, given the considerable damage which the European starling causes to vines, the Province of Burgenland considered it necessary to have recourse to the derogating provision constituted by Article 9 of the Directive and to adopt Paragraph 88a of the Bgld JagdG. There is no other satisfactory solution, given that conventional means of driving this species away have proved insufficient.

–       Findings of the Court

287   Any measure that derogates from the Directive’s protective provisions must be examined in light of the conditions and criteria set out in Article 9 of the Directive. Consequently, the Member States cannot entitle the authority vested with the power to make regulations to adopt measures derogating from the protective rules prescribed by the Directive without defining in a precise manner the substantive and formal requirements, arising from that article, to which such derogations must be subject (see, to this effect, WWF Italia and Others, paragraphs 25 and 28).

288   Paragraph 88a of the Bgld JagdG neither specifies the means, arrangements or methods authorised for capture or killing nor lays down in a binding manner the specific manner in which action may be taken.

289   Under Paragraph 88a(2), it is sufficient for a regulation to establish the existence of a danger for viticulture resulting from the presence of European starlings. The regulation to be adopted is not required, on the other hand, to contain specific particulars having regard to the criteria laid down in Article 9(2) of the Directive.

290   Thus, the regime established in Paragraph 88a of the Bgld JagdG regarding the combating of the European starling does not satisfy the detailed rules for derogation prescribed in Article 9 of the Directive.

291   The Commission’s complaint is therefore well founded in this regard.

–       Province of Lower Austria

 Arguments of the parties

292   The Commission submits that the general authorisation granted in Paragraph 20(4) of the Nö NSchG regarding scientific or pedagogical activities does not list exhaustively the conditions and criteria to be satisfied in order to be able to derogate from the provisions on the protection of wild birds. Moreover, this authorisation is couched in such vague terms that it cannot in any event be justified under Article 9 of the Directive.

293   The Commission further submits that Paragraph 21(2) of that Law also permits derogation from the provisions relating to the protection of wild birds, for the purposes of agricultural or silvicultural use, without making this exception subject to the conditions and criteria laid down in Article 9 of the Directive.

294   The Republic of Austria asserts that the protection required by the Directive is ensured in Paragraph 20(4) of the Nö NSchG. When applying this provision, the competent authorities must act, first, in accordance with the Directive and, second, with a view to uniform application of national law and therefore taking account of the protective requirements laid down by hunting law. In any event, only very restrictive derogations are granted in practice.

295   The Republic of Austria submits that, when use is made of the derogation provided for in Paragraph 20(4) of the Nö NSchG, there is also the possibility of applying, where appropriate, criteria more restrictive than those laid down in Article 9 of the Directive. As regards Paragraph 21(2) of the Nö NSchG, this provision expressly lays down that the exemption clauses are inapplicable where protected flora, fauna or habitats are deliberately harmed.

296   The Republic of Austria adds that, even though derogations from the hunting regime and from the other restrictions and prohibitions laid down in Articles 5, 6 and 8 of the Directive must be founded on at least one of the grounds listed in Article 9(1), regard must also be had to the fact that the capture of birds in small numbers is possible provided that the other conditions set out in Article 9 are observed.

 Findings of the Court

297   The ability to derogate from the protective provisions relating to engaging in hunting and from the prohibitions set out in Articles 5, 6 and 8 of the Directive is subject, by virtue of Article 9, to a number of conditions and criteria.

298   Also, so far as concerns the fundamental conditions relating to the legal form of the transposition of the Directive, the Court has stated that, in order to secure the full implementation of the Directive in law and not only in fact, Member States must establish a specific legal framework in the area in question and that the fact that activities incompatible with the prohibitions contained in the Directive are unknown in a particular Member State cannot justify the absence of legal provisions (see Case C-339/87 Commission v Netherlands, paragraph 25).

299   It should be added that the conditions and criteria which the Member States must meet in order to derogate from the prohibitions laid down in the Directive have to be reproduced in specific national provisions (see Case C-118/94 Associazione Italiana per il WWF andOthers [1996] ECR I‑1223, paragraph 22).

300   It follows that the relevant laws or regulations adopted by the Member States must themselves set out exhaustively the grounds allowing derogation, where appropriate, from the protective provisions laid down by the Directive.

301   Furthermore, as is pointed out in paragraph 162 of the present judgment, administrative practices consistent with the Directive do not meet the requirements for correct transposition.

302   Accordingly, it must be found that, having regard to its wording, Paragraph 20(4) of the Nö NSchG cannot amount to a correct transposition of one of the grounds of derogation provided for in Article 9 of the Directive.

303   As regards Paragraph 21(2) of the Nö NSchG, which excludes agricultural and silvicultural use of land from the prohibitions regarding the protection of birds, it is to be noted that this provision does not apply where harm to protected flora and fauna is caused deliberately.

304   However, the various prohibitions laid down in Article 5 of the Directive which can apply to agricultural or silvicultural operations relate to deliberately caused harm.

305   Consequently, the exceptions laid down in Paragraph 21(2) of the Nö NSchG cannot be subject to Article 9 of the Directive.

306   It follows from the foregoing that the Commission’s complaint alleging that the legislation of the Province of Lower Austria infringes Article 9(1) and (2) of the Directive is well founded so far as concerns Paragraph 20(4) of the Nö NSchG.

307   On the other hand, the complaint is unfounded in so far as it relates to Paragraph 21(2) of the Nö NSchG.

–       Province of Upper Austria

 Arguments of the parties

308   The Commission contends that Paragraph 60(3) of the Oö JagdG does not satisfy the conditions and criteria laid down in Article 9 of the Directive because the legality of the action authorised by this national provision is not subject to the condition that there be no other satisfactory solution.

309   The Republic of Austria asserts that this national provision is consistent with Community law, given that all substantive and formal requirements set out in Article 9 of the Directive are met. The birds referred to in the national provision are indeed protected throughout the year and it is always necessary to obtain an authorisation in order to derogate from the system of protection established in Paragraph 48 of the Oö JagdG.

310   The Republic of Austria also states that it is apparent from the preparatory documents in respect of Paragraph 60(3) of the Oö JagdG that the legislature of Upper Austria itself examined the conditions and criteria laid down in Article 9 of the Directive.

311   The legislature took the view that the powers granted to occupiers to prevent serious damage being caused to crops, cattle and other forms of property are justified, since no other satisfactory solution is generally available to occupiers when the animals covered enter residential or commercial buildings.

 Findings of the Court

312   Paragraph 60(3) of the Oö JagdG allows protected birds to be captured or killed and appropriated in order to prevent damage ‘to other forms of property’.

313   Such a ground of derogation does not correspond to the interests whose protection is envisaged in the third indent of Article 9(1)(a) of the Directive.

314   In addition, it is apparent from the fourth indent of Article 9(2) of the Directive that the Member State authorities entrusted with applying the Directive are required to designate a body which, for each derogating measure envisaged, examines whether the conditions required for authorising such a measure obtain, decides in particular on the means, arrangements or methods that may be used, and determines the limits of the measure and who may rely on it.

315   Paragraph 60(3) of the Oö JagdG does not contain such details.

316   Nor does that provision specify the form of the controls that are provided for in the fifth indent of Article 9(2) of the Directive.

317   Finally, as regards the argument to the effect that the competent authorities interpret the national provision consistently with the Directive, it need only be recalled, as has already been stated in paragraph 162 of the present judgment, 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 fulfilment in accordance with Community law of the obligation to transpose a directive owed by the Member States to which it is addressed.

318   Therefore, Paragraph 60(3) of the Oö JagdG is not consistent with Article 9(1) and (2) of the Directive.

319   The Commission’s action must consequently be upheld in this regard.

–       Province of Salzburg

 Arguments of the parties

320   The Commission observes that, under Paragraph 34(1) of the Sbg NSchG, derogations from the protective provisions may be granted for the purpose of the production of beverages. It has not been established under which derogation authorised by the Directive such a regime could fall.

321   The Commission also submits that under Paragraph 72(3) of the Sbg JagdG derogations from the prohibition on using traps to kill wild animals may be granted without taking account of the conditions and criteria laid down in Article 9 of the Directive. Furthermore, a restrictive interpretation of Paragraph 72(3) of the Sbg JagdG is not sufficient in order for those conditions and criteria to be satisfied in a legally binding manner.

322   As regards the production of beverages, referred to in Paragraph 34(1) of the Sbg NSchG, the Republic of Austria submits that that provision is not applicable to birds. The derogation in question is intended to allow the production of alcoholic beverages from certain plant species. Furthermore, that provision authorises derogations to be granted only if the conditions set out in Paragraph 34(3) are met.

323   The Republic of Austria submits in relation to the use of traps pursuant to Paragraph 72(3) of the Sbg JagdG that the conditions for derogation are consistent with the requirements of Article 9 of the Directive.

 Findings of the Court

324   First, Paragraph 34(1) of the Sbg NSchG specifies a ground of derogation connected with the production of beverages which is not included in the exhaustive list of grounds set out in Article 9(1) of the Directive.

325   Nor do Paragraph 34(1) and (3) contain any restriction as to the method of implementing the derogation for which Paragraph 34 provides.

326   Second, Paragraph 72(3) of the Sbg JagdG likewise fails to have regard to the fact that the list of the grounds of derogation in Article 9(1) of the Directive is exhaustive. Paragraph 72(3) permits the setting of traps inter alia when public interests of an importance comparable to that of the prevention of threats to human life or health cannot be protected in another manner.

327   Such a ground of derogation is not included in that list.

328   The present complaint put forward by the Commission must consequently be held well founded.

–       Province of Tyrol

 Arguments of the parties

329   The Commission submits that Paragraph 4(3) of the Tiroler NSchVO provides that it is lawful to chase away the crow, the European starling and the blackbird from land cultivated for agricultural or silvicultural purposes and from private gardens, without reference being made to the conditions and criteria laid down in Article 9 of the Directive.

330   The Republic of Austria contends that Paragraph 4(3) of the Tiroler NSchVO does not infringe Article 9 of the Directive, on the ground that it does not constitute a derogation from Articles 5, 6 and 7 of the Directive. In particular, under Article 5(d) of the Directive, only disturbance which is significant having regard to the objectives of the Directive is prohibited. The chasing away of the three species that is permitted does not have a significant effect of this kind.

331   The Republic of Austria also states that the system of protection prescribed in Articles 5, 6 and 7 of the Directive and the derogating regime laid down in Article 9(1) and (2) relate to deliberate disturbance.

 Findings of the Court

332   The wording of Paragraph 4(3) of the Tiroler NSchVO excludes, without any limitation, three species of wild birds from the system of protection laid down by the Directive where birds of those species are on or near land cultivated for agricultural or silvicultural purposes or in or near domestic gardens.

333   This derogation is not accompanied by any reservation as to the manner in which it is to be implemented.

334   It should be added that, if the species concerned were in fact driven away from all the areas referred to, their habitats would be reduced to almost nothing. Accordingly, contrary to the Republic of Austria’s submissions, the resulting disturbance is liable to be significant having regard to the protective objectives pursued by the Directive.

335   In light of these considerations, it is clear that Paragraph 4(3) of the Tiroler NSchVO does not comply with the conditions and criteria for derogation set out in Article 9 of the Directive.

336   The complaint set out by the Commission with regard to the Paragraph 4(3) of the Tiroler NSchVO must therefore be upheld.

 Breach of Article 11 of the Directive in Lower Austria

–       Arguments of the parties

337   The Commission submits that Paragraph 17(5) of the Nö NSchG makes the introduction of species of birds which do not occur naturally in the wild state in Lower Austria subject to the condition that this does not cause lasting harm to the native natural environment. This condition constitutes a criterion additional to those laid down in Article 11 of the Directive.

338   The Republic of Austria observes that, when Paragraph 17(5) of the Nö NSchG is interpreted consistently with Article 11 of the Directive, authorisation to introduce a non-native species into the wild is always refused if that is harmful to local fauna and flora.

–       Findings of the Court

339   First of all, as has been stated in paragraph 103 of the present judgment, the importance of complete and effective protection of wild birds throughout the Community, irrespective of the areas they stay in or pass through, causes any national legislation which delimits the protection of wild birds by reference to the concept of national heritage to be incompatible with the Directive.

340   Also, Article 11 of the Directive, according to which Member States are to see that any introduction of species of bird which do not occur naturally in the wild state in the European territory of the Member States does not prejudice the local flora and fauna, establishes a particularly restrictive legal framework as regards the possibility of authorising the introduction of such species of bird.

341   Paragraph 17(5) of the Nö NSchG lays down a system of protection which departs in several respects from that set out in Article 11 of the Directive. It must therefore be considered not to be consistent with Article 11.

342   With regard to the argument that, in any event, Paragraph 17(5) of the Nö NSchG would be interpreted by the competent national authorities in a manner consistent with the Directive, it need merely be noted that, as is apparent from paragraph 162 of the present judgment, full implementation of the Directive cannot be guaranteed in such circumstances.

343   Consequently, this final complaint put forward by the Commission must be upheld.

344   It follows from all of the foregoing considerations that, by failing to transpose correctly

–       Article 1(1) and (2) of the Directive in Burgenland, Carinthia, Lower Austria, Upper Austria and Styria;

–       Article 5 of the Directive in Burgenland, Carinthia, Lower Austria, Upper Austria and Styria;

–       Article 6(1) of the Directive in Upper Austria;

–       Article 7(1) of the Directive in Carinthia, Lower Austria and Upper Austria;

–       Article 7(4) of the Directive in the following provinces and regarding the following species:

–       in Carinthia as regards the capercaillie, black grouse, common coot, woodcock, wood pigeon and collared dove,

–       in Lower Austria as regards the wood pigeon, capercaillie, black grouse and woodcock,

–       in Upper Austria as regards the capercaillie, black grouse and woodcock,

–       in the Province of Salzburg as regards the capercaillie, black grouse and woodcock,

–       in Styria as regards the capercaillie, black grouse and woodcock,

–       in Tyrol as regards the capercaillie and black grouse,

–       in Vorarlberg as regards the black grouse, and

–       in the Province of Vienna as regards the woodcock;

–       Article 8 of the Directive in Lower Austria;

–       Article 9(1) and (2) of the Directive in Burgenland, Lower Austria as regards Paragraph 20(4) of the Nö NSchG, Upper Austria, the Province of Salzburg, Tyrol and Styria;

–       Article 11 of the Directive in Lower Austria,

the Republic of Austria has failed to fulfil its obligations under Article 10 EC, Article 249 EC and Article 18 of the Directive.

 Costs

345   Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the Republic of Austria has been essentially unsuccessful in its pleas relating to the grounds of infringement which remain at issue in the proceedings, the Republic of Austria should be ordered to pay the costs relating to those pleas.

346   As regards the grounds of infringement set out in the application which were withdrawn by the Commission at a subsequent stage in the proceedings, it must be stated that the Commission ceased pursuing the complaints concerned as a result of amendments to the domestic legal instruments at issue. The withdrawal is accordingly attributable to the defendant, given that the instruments were brought into line with the requirements of Community law only belatedly. In accordance with Article 69(5) of the Rules of Procedure, the Republic of Austria should therefore also be ordered to bear the costs relating to these grounds of infringement. Consequently, the Republic of Austria should be ordered to pay all the costs of the present proceedings.

On those grounds, the Court (Fourth Chamber) hereby:

1.      Declares that, by failing to transpose correctly

–       Article 1(1) and (2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, in Burgenland, Carinthia, Lower Austria, Upper Austria and Styria;

–       Article 5 of Directive 79/409 in Burgenland, Carinthia, Lower Austria, Upper Austria and Styria;

–       Article 6(1) of Directive 79/409 in Upper Austria;

–       Article 7(1) of Directive 79/409 in Carinthia, Lower Austria and Upper Austria;

–       Article 7(4) of Directive 79/409 in the following provinces and regarding the following species:

–       in Carinthia as regards the capercaillie, black grouse, common coot, woodcock, wood pigeon and collared dove,

–       in Lower Austria as regards the wood pigeon, capercaillie, black grouse and woodcock,

–       in Upper Austria as regards the capercaillie, black grouse and woodcock,

–       in the Province of Salzburg as regards the capercaillie, black grouse and woodcock,

–       in Styria as regards the capercaillie, black grouse and woodcock,

–       in Tyrol as regards the capercaillie and black grouse,

–       in Vorarlberg as regards the black grouse, and

–       in the Province of Vienna as regards the woodcock;

–       Article 8 of Directive 79/409 in Lower Austria;

–       Article 9(1) and (2) of Directive 79/409 in Burgenland, Lower Austria as regards Paragraph 20(4) of the Law of Lower Austria on Nature Protection (Niederösterreichisches Naturschutzgesetz), Upper Austria, the Province of Salzburg, Tyrol and Styria;

–       Article 11 of Directive 79/409 in Lower Austria,

the Republic of Austria has failed to fulfil its obligations under Article 10 EC, Article 249 EC and Article 18 of Directive 79/409;

2.      Dismisses the action as to the remainder;

3.      Orders the Republic of Austria to pay the costs.

[Signatures]

* Language of the case: German.

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