Report for the Hearing in Case C-75/91

I — Facts and Procedure

1. On 13 October 1987 the Court delivered a judgment in Case 236/85 Commission v Netherlands [1987] ECR 3989 in which it held that, by not adopting within the prescribed period all the laws, regulations and administrative provisions needed to comply with Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, the Kingdom of the Netherlands had failed to fulfil its obligations under the EEC Treaty.

2. Directive 79/409/EEC (Official Journal 1979 L 103, p. 1) relates to the conservation of all species of naturally occurring birds in the wild state in the European territory of the Member States to which the Treaty applies. It covers the protection, management and control of these species and it lays down rules for their exploitation.

3. On 24 April 1989 the Commission, unaware of any legislation implementing the judgment of the Court of 13 October 1987, gave the Netherlands Government formal notice, pursuant to Article 169 of the Treaty, that it should submit, within two months, its observations on the subject of the infringement of Article 171, the third paragraph of Article 189 and the first paragraph of Article 5 of the EEC Treaty.

4. The Netherlands Government replied by letter of 25 July 1989. It stated that every effort had been made to transmit, as quickly as possible, to the Raad van State (Council of State) for its opinion, a draft law regarding the conservation of flora and fauna, with a view to implementing Directive 79/409/EEC and complying with the above judgment.

5. Since this reply led the Commission to conclude that the Netherlands authorities had not set in motion in good time the necessary procedures for transposing Directive 79/409/EEC into national law in order to comply with the judgment of the Court, it delivered a reasoned opinion on 27 February 1990, pursuant to Article 169 of the Treaty. The Netherlands Government was requested to take the necessary measures to comply with that opinion within two months of receiving it.

6. The Netherlands Government replied by letter of 2 May 1990. It stated in this letter that the Raad van State had given its opinion and the draft law mentioned in the letter of 25 July 1989 would be put before Parliament very shortly. The Netherlands Government also announced that a draft law amending the Jachtwet (Law on Hunting) and the Vogelwet (Law on Birds) of 1936 would be tabled by the summer.

7. The Commission, having no information as to whether or not the draft laws had been placed before Parliament, brought the present action.

II — Written procedure

1. The Commission's application, dated 20 February 1991, was registered at the Court on 22 February 1991.

2. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

3. The Commission claims that the Court should: (i) declare that, by failing to adopt the measures required to comply with the judgment of the Court of Justice of the European Communities of 13 October 1987 in Case 236/85, the Kingdom of the Netherlands has failed to fulfil its obligations under the EEC Treaty; (ii) order the Kingdom of the Netherlands to pay costs.

4. The Government of the Kingdom of the Netherlands leaves it to the Court to decide as it sees fit on the Commission's application.

III — Pleas in law and arguments of the parties

1. The Commission considers that the Kingdom of the Netherlands should have taken the necessary steps to comply with the judgment of the Court of 13 October 1987, in accordance with the terms of Article 171 of the EEC Treaty.

2. The Government of the Kingdom of the Netherlands acknowledges that legislative measures needed in order to comply with the judgment of the Court have not yet entered into force. It points out that the competent authorities are preparing a new law on flora and fauna. This law will include the substance of Directive 79/409/EEC. However, the Netherlands Government stresses that it has decided to meet the obligations arising from the judgment of 13 October 1987 before the approval of that draft law by amending the Jachtwet and the Vogelwet. It also points out that, apart from the judgment of 13 October 1987, the two other judgments of the Court relating to the implementation by the Kingdom of the Netherlands of Directive 79/409/EEC fall to be considered in the preparation of the legislative amendments. The Law on Hunting has to be adapted in the light of the judgment of 15 March 1990 in Case C-339/87 Commission v Kingdom of the Netherlands [1990] ECR I-851 and of the judgment of 23 May 1990 in Case C-169/89 Criminal proceedings against Gourmetterie van den Burg [1990] ECR I-2143. The Government of the Kingdom of the Netherlands also states that a draft law was put before the Second Chamber of Parliament on 15 August 1991.

M.Diez de Velasco

Judge-Rapporteur

1 Language of the case: Dutch.