CJEC, 6th chamber, May 23, 1990, No C-169/89

THE COURT (Sixth Chamber)

1 By judgment of 25 April 1989, which was received at the Court on 16 May 1989, the Hoge Raad der Nederlanden referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question concerning the interpretation of Articles 30 and 36 of the Treaty. That question arose in criminal proceedings instituted against a trader in foodstuffs, Gourmetterie Van den Burg.

2 In 1984 inspectors entrusted with ensuring compliance with the Netherlands Vogelwet (Law on Birds) confiscated a dead red grouse on the premises of Gourmetterie Van den Burg. The trader was subsequently prosecuted and convicted for infringing the provisions of the law in question, which is designed to protect birds occurring in the wild state in Europe. It appealed against that conviction on the ground that the confiscated red grouse had been lawfully killed in the United Kingdom, in accordance with the combined provisions of Article 6(2) and (3) and Annex III/1.2 of Council Directive 79-409-EEC of 2 April 1979 on the conservation of wild birds (Official Journal 1979, L 103, p. 1).

3 The Hoge Raad, hearing the case at last instance, found that Article 7 of the Vogelwet precluded the bird in question from being bought or sold on the domestic market and that the application of that law hindered trade in a British game bird, lawfully shot and freely marketed in the country of origin. The Hoge Raad considered that, in so far as the prohibition laid down in the Vogelwet also extends to the importation and keeping of dead red grouse, it was in the nature of a measure having an effect equivalent to a quantitative restriction within the meaning of Article 30 of the Treaty. In its view, the assessment of the appeal depends on the question whether the prohibition in question may be considered justified under Article 36 of the Treaty on grounds of the protection of health and life of animals.

4 The Hoge Raad accordingly referred the following question to the Court:

"May the prohibition applicable in the Netherlands by virtue of Article 7 of the Vogelwet (Law on Birds) on the importation and keeping of red grouse, shot and killed in the United Kingdom without any breach of the law applicable in that country, be regarded as a prohibition which is justified under Article 36 of the EEC Treaty on grounds of the protection of health and life of animals, regard being had to the fact that:

in the first place, the exception referred to in Article 6(2) of Directive 79-409-EEC applies to red grouse, which are referred to in Annex III-1 to the directive;

secondly, the purpose of the prohibition laid down in Article 7 of the Vogelwet is the preservation of wild birds and in particular the protection of all species of birds occurring in the wild state in Europe, subject to certain exceptions which do not, however, include the red grouse?"

5 Reference is made to the Report for the Hearing for a fuller account of the legal background and the facts of the case, the course of the procedure and the written observations submitted to the Court which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

6 In its question, the national court raises in substance a problem concerning the interpretation of Article 36 of the Treaty, according to which the principle of the free movement of goods does not preclude prohibitions or restrictions on imports which are justified on grounds of the protection of health and life of animals.

7 It is not disputed that the national measure in question constitutes a prohibition on imports and that the red grouse is a species which does not occur within the Netherlands.

8 With regard to Article 36 of the Treaty, the Court has consistently held (see, most recently, the judgment of 14 June 1988 in Case 29-87 Dansk Denkavit v Danish Ministry of Agriculture ((1988)) ECR 2982) that a directive providing for full harmonization of national legislation deprives a Member State of recourse to that article.

9 As regards the degree of harmonization brought about by Directive 79-409, it should be noted that, although the bird in question may, in accordance with Article 6(2) and (3) of the directive, be hunted within the Member State in which it occurs, the fact remains that Article 14 authorizes the Member States to introduce stricter protective measures than those provided for under the directive. The directive has therefore regulated exhaustively the Member States' powers with regard to the conservation of wild birds.

10 It is therefore appropriate to define the scope of the powers conferred on the Member States by Article 14 of the directive. In that regard, reference should be made to the principal criteria on which the Community legislature has relied in the matter.

11 First of all, as the Court emphasized in its judgment of 27 April 1988 in Case 252-85 Commission v France ((1988)) ECR 2243, Directive 79-409 grants special protection to migratory species which constitute, according to the third recital in the preamble to the directive, a common heritage of the Community. Secondly, in the case of the most endangered birds, the directive provides that the species listed in Annex I must be the subject of special conservation measures in order to ensure their survival and reproduction.

12 It follows from those general objectives laid down by Directive 79-409 for the protection of birds that the Member States are authorized, pursuant to Article 14 of the directive, to introduce stricter measures to ensure that the aforesaid species are protected even more effectively. With regard to the other bird species covered by Directive 79-409, the Member States are required to bring into force the laws, regulations and administrative provisions necessary to comply with the directive, but are not authorized to adopt stricter protective measures than those provided for under the directive, except as regards species occurring within their territory.

13 Next, it should be noted that the red grouse is neither a migratory species nor a seriously endangered species set out in Annex I to the directive.

14 Furthermore, Council Regulation (EEC) No 3626-82 of 3 December 1982 on the implementation in the Community of the Convention on international trade in endangered species of wild fauna and flora (Official Journal 1982, L 384, p. 1) does not refer to the red grouse as an endangered animal within the meaning of that Convention.

15 It follows from the foregoing that Article 14 of the directive does not empower a Member State to afford a given species which is neither migratory nor endangered stricter protection, by means of a prohibition on importation and marketing, than that provided for by the legislation of the Member State on whose territory the bird in question occurs, where such legislation is in conformity with the provisions of Directive 79-409.

16 The answer to the question submitted for a preliminary ruling must therefore be that Article 36 of the Treaty, read in conjunction with Council Directive 79-409 of 2 April 1979 on the conservation of wild birds, must be interpreted as meaning that a prohibition on importation and marketing cannot be justified in respect of a species of bird which does not occur in the territory of the legislating Member State but is found in another Member State where it may lawfully be hunted under the terms of that directive and under the legislation of that other State, and which is neither migratory nor endangered within the meaning of the directive.

Costs

17 The costs incurred by the Netherlands Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions submitted to it by the Hoge Raad der Nederlanden, by judgment of 25 April 1989, hereby rules:

Article 36 of the Treaty, read in conjunction with Council Directive 79-409-EEC of 2 April 1979 on the conservation of wild birds, must be interpreted as meaning that a prohibition on importation and marketing cannot be justified in respect of a species of bird which does not occur in the territory of the legislating Member State but is found in another Member State where it may lawfully be hunted under the terms of that directive and under the legislation of that other State, and which is neither migratory nor endangered within the meaning of the directive.