II. WILDLIFE LAW: INTERNATIONAL AND NATIONAL DIMENSIONS

2.1. Linkages between International, National and Local Legislation

The past decades have witnessed a massive increase of environmental rules adopted in international fora, such as global or regional agreements and legislation issued by the European Community (EC), and a consequent increased impact of these sources onto national legal systems.

At the same time, there has been a growing tendency towards the devolution of powers of central governments in the environmental sector to local authorities. In States which have a federal or similar decentralized structure, wildlife is often among the subjects on which local authorities at some level are allowed to legislate, either independently or within the framework of legislation issued at the central level.

These parallel processes are both productive approaches for wildlife protection and management. As to international initiatives, the harmonization of environmental legislation among different countries is useful because it may bring those which tend to lag behind in the adoption of stringent environmental rules up to the standards of more active ones, while it usually does not prevent the latter from adopting stricter protective measures. The adoption of rules at the international level also makes it possible to protect and manage species whose range extends beyond national boundaries. It may also contribute to fair competition among enterprises, as if harmonized environmental rules are in place, concerned producers are made subject to the same or very similar restrictions, for the benefit also of consumers.

As to the increasing devolution of powers to the local level, this process may facilitate consideration of all concerned interests and adequate consultation of their representatives, especially where authorities are democratically elected. It may also facilitate the identification of particular local requirements with regard to indigenous species or particular sites. The more recent international environmental agreements, such as the Convention on Biological Diversity, emphasize area-based measures and planning, which are usually best achieved at the local level. The incorporation of environmental concerns into local planning can considerably contribute to the conservation of habitats outside protected areas. By vesting local authorities with overall responsibilities for the development of their respective territorial areas, conflicts which often arise among different central authorities responsible for interrelated sectors (for example, wildlife and hunting, agriculture, forestry, environment) may be mitigated, as there is usually a closer integration among branches of the administration at this level. Local authorities, being the closest representatives of the local communities, tend to be in the best position to guarantee their interests in a process of integrated planning.

Both international and local law-making and implementation can therefore significantly contribute to wildlife conservation. The integration of these processes with each other, however, can be rather complex. Legislation adopted at the international level must usually be implemented by the adoption of specific domestic rules. The legislative power on the relevant subject in a country may have been delegated to one or more levels of local authorities. While the State remains responsible for the obligations to which it subscribed at the international level, harmonized compliance, even within a single country, may be made difficult by the inactivity of some local authorities, or by possible differences in the implementation by them.

The process of implementation of EC legislation, for example, has often been less efficient in the case of required "transposition" of rules regarding subjects reserved to the legislative power of local authorities within Member States. This problem goes beyond the issue of wildlife management legislation, and various approaches are being experimented in EU Member States both to facilitate compliance with international obligations and at the same time to respect the role and activities of local authorities.

The case of Italy provides a number of specific examples. In this country, some legislation has been adopted in the past decades specifically to improve the process of integration of EC legislation into the national legal system. Some of this legislation applies to any subject, while some specifically concerns environmental and wildlife management legislation, and follows a flood of litigation raised by the regions and/or by environmental associations. A decree of 1997^[1], for example, specifically regulates the respective powers of central authorities and of the regions concerning derogations from the EC Birds Directive. The Directive sets out a list of protected species, but allows Member States to consent to exemptions under specified circumstances (art. 9(1)(c)). Italian regions have tended to freely derogate from the EC rules. The decree reserves to the State the power to establish a uniform regime on derogations. Regional administrations may grant exemptions only in agreement with the Ministries of the environment and of agricultural policies, subject to specified conditions which must be verified by the National Wildlife Institute.

Legislative Decree 112 of 31 March of 1998 spells out, among others, the functions relating to nature protection which are declared to be "of national relevance". These include the implementation of international and EC legislation regarding environmental protection; conservation and enhancement of protected areas which have been recognized as having international or national importance, and protection of biodiversity, fauna and flora which are specifically protected by international and EC legislation; modification of the list of species which may be hunted pursuant to international sources of law, of endangered species, and of dangerous mammals and reptiles; authorization of import and export of indigenous species (art. 69.1(a), (b), (i) and (l)-(n)).

There have also been disputes between central and regional authorities concerning the implementation of the provisions of the national law which allow modifications by the regions of the hunting seasons set out in national legislation (article 19 of the Law on Protection of Warm-blooded Wild Fauna and Hunting). In practice, this possibility has mainly been utilized to allow longer hunting periods in some regions, without taking into due account the opinion of the National Wildlife Institute, which by law is required to be issued - a practice which is greatly criticized by environmental associations.

Adequate international, national and local rules are all essential means for good wildlife management. Addressing issues at the most appropriate territorial level also contributes to the adequacy of these rules. For example, species whose range extends across administrative boundaries are likely to be most appropriately addressed mainly at the national or international level, as a single management approach may be adopted. On the contrary, there are areas or species whose characteristics require more detailed local regulation, which are most appropriately addressed mainly at the local level, although within the framework of international and national principles. It is also important that arrangements on sharing of legislative and administrative powers among the international, national and local level be clearly made, whether or not they are embodied in specific legislative provisions.

2.2. Overview of Principal International Agreements

Numerous international agreements adopted at the global and regional level concern wildlife or have some potential impact on it. Although the focus of this study are domestic laws, this section briefly outlines the contents of the principal global agreements, as they have widely contributed to the development of national legislation. This has not happened only in the numerous States which have become parties to them but also in other countries whose legislation has been influenced by them, although a process of formal acceptance may not have been undertaken or completed. As to regional initiatives, the peculiar case of EC legislation, which has had an outstanding impact on the law its member countries, is presented separately in the following section.

Among the most significant agreements, CITES, the Convention on International Trade in Endangered Species of Wild Flora and Fauna, was adopted at Washington in 1973. The Convention protects endangered species by restricting and regulating their international trade through export permit systems. For species threatened with extinction which are or may be affected by trade (listed in Appendix I to the Convention), export permits may be granted only in exceptional circumstances and subject to strict requirements; the importation of these species also requires a permit, while trade for primarily commercial purposes is not allowed. For species which may become endangered if their trade is not subject to strict regulation (listed in Appendix II), export permits (including for commercial trade) can only be granted if export is not detrimental to the survival of that species and if other requirements are met. For species subject to national regulation and needing international cooperation for trade control (listed in Appendix III), export permits may be granted for specimens not obtained illegally. Additions and deletions of species from Appendices I and II are made by the Conference of Parties, according to established criteria. In 1994, the Conference adopted new criteria, repealing those long in force. The new criteria encompass general principles such as the precautionary principle, and detailed biological and other requirements.

The Convention requires states to adopt legislation that penalizes trade in and possession of covered species, and to provide for the confiscation or return to the state of illegal exports. In the last decade, the Conference of Parties has adopted several resolutions on enforcement and compliance, such as Resolution 9.9 (1994), recommending confiscation of specimens exported illegally; Resolution 9.10 (Rev.) (1994), on disposal of confiscated specimens or parts or derivatives thereof; and Resolution 11.3 (2000), recommending greater co-ordination between competent authorities, and outlining measures to promote enforcement, such as creating appropriate incentives for local and rural communities. The Conference has also adopted resolutions on trade in specified species, and on ranching and breeding of protected species.^[2]

Another significant international agreement is the Convention on the Conservation of Migratory Species of Wild Animals, adopted at Bonn in 1979, which requires cooperation among "range" States hosts to migratory species regularly crossing international boundaries. With regard to species considered as endangered (listed in Appendix I), states must conserve and restore their habitats; prevent, remove or minimize impediments to their migration; prevent, reduce and control factors endangering them; and prohibit their taking. With regard to other species which have an unfavourable conservation status (listed in Appendix II), range states undertake to conclude agreements to maintain or restore concerned species in a favourable conservation status. One post-Rio agreement adopted under the Convention is the Agreement on the Conservation of African-Eurasian Migratory Waterbirds (1995), which provides for concerted actions to be taken by the Range States (117 countries, from the northern reaches of Canada and the Russian Federation to the southernmost tip of Africa) throughout the migration systems of the 172 species of waterbirds to which it applies.

A "Strategy for the Future Development of the Convention" was adopted by the Conference of Parties in 1997, prioritizing objectives for the triennium 1998-2000. In 1999, the Conference adopted the Strategic Plan for 2000-2005, whose objectives include prioritizing conservation actions for migratory species (inter alia by integrating consideration for migratory species in government policies, by mitigating obstacles to migration, and by identifying priority Appendix II species for the conclusion of agreements under the Convention; promoting accession of targeted countries to the Convention; and facilitating and improving implementation of the Convention, by mobilizing financial resources, rationalizing institutional arrangements and strengthening linkages with other international biodiversity-related arrangements.

While CITES and the Bonn Convention are species-based treaties, the protection of specific habitats important for wildlife is also achieved through area-based treaties, such as the Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar, 1971), and the Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention, Paris, 1972).

Parties to the Ramsar Convention must designate wetlands in their territory for inclusion in a List of Wetlands of International Importance, and promote their conservation and wise use, for example by establishing nature reserves. "Criteria for Identifying Wetlands of International Importance" were adopted at the 4^th, 6^th and 7^th meetings of the Conference of the Contracting Parties in 1990, 1996 and 1999, respectively. A Strategic Plan 1997-2002 was adopted by the 1996 Conference of Parties, emphasizing the need to integrate wetland protection with sustainable development (considered as synonymous with "wise use"^[3]), to promote participation of local communities and involvement of the private sector and to mobilize resources at the international level.

The World Heritage Convention provides for the identification and conservation of sites of outstanding universal value from a natural or cultural point of view, to be included in the World Heritage List. While responsibility for conservation is primarily vested in the state where the site is located, the Convention also provides for international assistance funded by the World Heritage Fund. At the tome of writing, 721 properties were listed, including 144 natural and 23 mixed (cultural and natural).

More recently, an increased consideration worldwide of the interaction of species and all other living organisms with each other and with human activities has led to the concern for the protection of biodiversity as a whole - a development reflected in Convention on Biological Diversity, adopted at Rio de Janeiro in 1992, and which is being gradually incorporated into national legislation. Under the Convention, conservation and sustainable use of biodiversity are to be pursued by adopting specific strategies and also by incorporating relevant concerns into any plans, programmes and policies (art. 6). Sustainable use of biodiversity must be a consideration in national decision-making (art. 10). Among the obligations for parties are the restoration of threatened species and, specifically, the adoption of legislation for the protection of endangered species (art. 8). Parties are also required to identify and control potential sources of adverse impacts on biodiversity (art. 7), and to regulate and manage them. Environmental impact assessments of projects likely to have "significant adverse effects" on biological diversity are required (art. 14).

De Klemm (1999) argues that, starting in particular from the Bonn Convention and the Biodiversity Convention, two new concepts have appeared in international environmental law. One is the concept of "conservation status", as international law has since progressively required that species or populations must be maintained in a favourable conservation status. The same notion is used, for example, in the EC Habitats Directive. The objective of a favourable conservation status is to be achieved through a number of "obligations de moyen", as potentially harmful activities are to be controlled and opposed. The other new concept is that of "potentially harmful process". This is reflected in the provisions of the Biodiversity Convention which require control of sources of adverse impacts and environmental impact assessments (arts. 7 and 14). Emphasis has thus switched from management of species to management of processes which may potentially harm them. Some national laws which reflect this concept are referred to in section 3.1.3.

2.3. European Community Legislation and Case Law

2.3.1. The European Community and Wildlife Law

Among the initiatives taken at the regional level, EC environmental legislation deserves a closer examination, as the particular nature of the Community’s legal system determines a more rapid and effective integration of its rules into national legislation compared to international legislation, which generally requires formal acceptance by individual countries before its entry into force. In the treaties establishing the European Communities, EC Member States^[4] have subscribed either to the direct application of legislation issued by the Community’s institutions, or to take adequate action to implement it. The existence of a judicial system to which all member countries are subject contributes to strengthening the obligations which derive from EC legislation.

As a consequence, the Community’s environmental rules have had an outstanding impact on the legal systems of its member countries. In the case of some of them, progress in enacting adequate legal frameworks for environmental protection and sustainable natural resource management has been largely the consequence of the Community’s initiatives. At the same time, the more progressive environmental legislation adopted or in the course of adoption in some of the Member States has served as an incentive to the Community institutions for the enactment of provisions on the same subjects, further determining a positive impact on the legislation of all member countries.

EC environmental legislation has also produced an impact over the legislation of third countries, as for various reasons (requirements of the pre-accession phase, participation in funding programmes to which they may be entitled, etc.) a process of "approximation" of their legislation with that of the EC is underway.

The legislation adopted by the Community concerning nature conservation thus far has limited its scope to specific aspects - mainly protection of species and habitats of particular interest -, without extending to others such as general wildlife management, hunting, and related aspects such as tenurial arrangements, accessibility of private lands for hunting (except as regards prohibited species and methods), size of holdings, etc. The legal instruments most frequently utilized are directives, which allow Member States to decide the form and means of implementation, as long as the common objective is reached. The most significant ones are Council Directive 79/409/EEC, as amended, on the conservation of wild birds, known as the Birds Directive, and Council Directive 92/43/EEC of 21 May 1992, as amended, on the conservation of natural habitats and of wild fauna and flora, known as the Habitats Directive.^[5]

2.3.2. The Birds Directive

The Birds Directive relates to the conservation of all species of naturally occurring birds in the wild state within the Member States' territory. The Directive requires Member States to take requisite measures to maintain or adapt the population of these species at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements (art. 2). Species listed in Annex I must be the subject of special conservation measures concerning their habitats, in order to ensure their survival and reproduction in their area of distribution. In this connection, account must be taken of species in danger of extinction, or vulnerable to habitat changes, or rare, or otherwise requiring particular attention because of their habitat’s nature. The most suitable territories in number and size for the conservation of these species must be classified as special protection areas (art. 4(1)). Similar measures must be taken for regularly occurring migratory species not listed in Annex I as regards their breeding, moulting and wintering areas and staging posts along their migration routes (art.. 4(2)).

A specific regime is set out for derogations from the provisions of the Directive, allowing them in specified cases, relating mainly to public health and security, protection of fauna and flora and scientific purposes, subject to the indication of all applicable conditions and only "where there is no other satisfactory solution". Derogations thus authorized by Member States must specify species, means, circumstances of time and place, and responsible authorities (art. 9).

2.3.3. The Habitats Directive

The Habitats Directive is the most comprehensive legislative instrument adopted by the Community regarding wildlife. Its main aim is stated to be "to promote the maintenance of biodiversity, taking account of economic, social, cultural and regional requirements" (preamble). The Directive provides for the designation of special areas of conservation in order to ensure the restoration or maintenance of natural habitats and species of Community interest (respectively listed in Annexes I and II) at a favourable conservation status, with a view to creating a coherent European ecological network, under the title of "Natura 2000". In the case of species ranging over wide areas, sites to be proposed correspond to the places within the natural range of such species which present the physical or biological factors essential to their life and reproduction (art. 4).

On the basis of criteria set out in Annex III of the Directive, the Commission is to establish a draft list of sites of Community importance in agreement with Member States. Pursuant to a specified procedure (set out in article 21), which involves the assistance of a committee made up of representatives of Member States, the list of selected sites, identifying those which host one or more priority natural habitat types or priority species, is adopted (art. 5(2)). Member States must designate such sites as special areas of conservation as soon as possible (art. 4(4)) and establish the necessary conservation measures, including management plans (which may be specific or integrated into other land use plans) as may be appropriate (art. 6(1)).

Natura 2000 is to include also the special protection areas classified by Member States under the Birds Directive (art. 3(1)), which are to be considered part of the network from the moment of their designation, and are not subject to the same procedure for declaration as special areas of conservation envisaged in the Habitats Directive. Authorities who are responsible for its implementation are to adopt necessary conservation measures within six months of their designation.

Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect on it, either individually or in combination with others, is subject to an assessment of the implications for the site in view of the site’s conservation objectives, and the competent authorities may agree to the plan or project only upon verification that it will not affect the integrity of the site concerned. If in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, Member State must take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected, informing the Commission of the measures adopted. Where the site concerned hosts a natural habitat type and/or a species which pursuant to the Directive are to be considered as a priority habitat type or species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion of the Commission, to other imperative reasons of overriding public interest (art.. 6(2)-(4)).

Arrangements are made for co-financing by the Community of action to be taken by States in relation to special areas of conservation hosting priority habitat types and/or priority species (art. 8).

Member States are also required to endeavour the management of features of the landscape which are of major importance for wildlife, such as those which may be essential for migration, dispersal and genetic exchange, with a view to improving the ecological coherence of the Natura 2000 network (art. 10). Member States are required to ensure surveillance of the conservation status of natural habitats and species of Community interest and particularly priority ones (art. 11).

Some provisions for the protection of specific listed species of animals and plants are included. Member States must ensure that the capture or killing of these species, as well as disturbance, destruction of eggs, of breeding sites and of resting places, and keeping and sale of wild specimens are prohibited (art. 12).

The Directive has numerous positive aspects and implications. Among these was the innovative nature of its objective at the time of its adoption, in that it aims at the integration of the "maintenance of biodiversity" with economic, social, cultural and regional requirements. It also has an appropriately wide scope of application as it covers not only entirely natural areas, but also significant areas in which human action and natural processes have interacted ("semi-natural habitats"). Natura 2000 sites are thus intended as sites where integrated land use planning incorporates both nature conservation and development objectives.

Another positive effect of the Directive has been to encourage States to formally adopt management plans in relation to sites to be protected, although this may have brought about new concerns in Member States as regards the integration of these plans with other existing or future plans involving some land use (e.g. forestry plans, hunting plans, etc.). The significance of these plans for rational wildlife management is enhanced by the requirements for standardization of data collection throughout Member States. Such requirements, which were further specified in subsequent implementing legislation^[6] and have been strengthened by the action of the Court of Justice, which has invariably convicted States which have not adequately complied, have promoted an unprecedented effort by States towards uniform gathering of environmental information relevant to species and sites of Community interest.

Measures to be adopted by Member States within each selected area are widely discretionary, subject to the general requirement to maintain species and habitats at a favourable conservation status. This has tended to be considered a weakness of the Directive by environmental associations, especially where responsible authorities take inappropriate action or tend to remain inactive.^[7] On the other hand, the flexibility allowed by the Directive enables management of concerned areas to be adapted to specific local requirements, in light also of economic and social concerns. The text of the Directive moves from the consideration that the maintenance of biodiversity "may in certain cases require the maintenance, or indeed the encouragement, of human activities" (preamble), and there are no such activities which are unconditionally prohibited. The identification of specific prohibitions is left to a case by case determination of the States.

2.3.4. Decisions by the Court of Justice of the European Communities

Decisions by the Court of Justice of the European Communities regarding the implementation of the Birds and Habitats Directive have strengthened the obligations arising from them, requiring punctual implementation by Member States. The Court has almost always upheld the position of the Commission, which has acted rather stringently for the implementation of the Birds and Habitats Directives, in its role as a guardian for the implementation of EC legislation.

In numerous cases, national governments were convicted because their domestic legislation was found not to adequately meet the requirements of the Directives. In the case Commission v. France of 2000^[8], the French government was found to be in violation of the Habitats Directive, as it had not adopted specific legislation for the implementation of article 6(3) and (4), concerning the assessment of the implications of plans and projects not directly connected with or necessary to the management of the site, but likely to have a significant effect on special areas of conservation. The existence of adequate provisions on environmental impact assessment in the French legal system was not considered to be satisfactory, as none of these provisions prescribes an assessment of the environmental impact in light of a site’s specific conservation objectives.

The Commission also claimed that there is an obligation for Member States to adopt express provisions making it compulsory for responsible national authorities to apply the conservation and protection measures envisaged in article 6(1) and (2) in special areas of conservation - a view which is often shared by environmental associations in Member States, concerned by the inactivity of the responsible authorities. The government of France, on the contrary, held that in its legal system a number of measures were already in place which generally ensured the implementation of the objectives of the Directive. On this specific point, however, the Court did not issue a decision, as the question was considered to go beyond the scope of the proceedings as initially defined.

Other national legislation which the Court considered inadequate to meet the requirements of the Birds Directive are provisions which allegedly establish a protective regime simply by maintaining a special protection area under the status of public domain, or as a hunting reserve, in the absence of concrete measures regarding sectors other than hunting.^[9] Protection based on legislation relating to water management and exclusively dealing with it, as well as protection based on voluntary EC "agro-environmental" measures, have also been considered insufficient to implement the Directive.^[10]

In other cases, the Court considered the actual implementation by some Member States, for example the selection of sites, or the submission of required data, inadequate. In Commission v. Netherlands,^[11] the Commission claimed the violation by the Netherlands of the Birds Directive as a much lower number of habitats had been classified as special protection areas than suggested by the 1989 Inventory of Important Bird Areas in the European Community (IBA). The government of the Netherlands on the contrary claimed that a review of every single area to consider its possible classification as a special conservation area would have been necessary for the purpose of identifying alleged violations of the Directive. The Court considered the classification made by the Netherlands (23 areas for a total of 327 602 ha, as opposed to 70 areas for a total of 797 920 ha identified in the IBA) manifestly in excess of the discretionary power granted to Member States by the Directive.

The government of the Netherlands stated to have utilized the same criteria as those followed in the IBA, but to have nonetheless reached different results in the classification of special protection areas. However, during the discussion before the Court, the same government admitted that different criteria were in fact utilized. The Court ruled that although this is not in itself unacceptable, as the IBA is not legally binding, the different criteria referred to have not been sufficiently presented and justified. An adequate implementation of the Directive should have been proven by the submission of adequate scientific evidence showing that the classification of a much smaller area than that suggested in the IBA was equally satisfactory. In the same case, the Court emphasized that the designation of the areas which are most appropriate by number and extension for the conservation of species listed in Annex I as special protection areas is an obligation which may not be eluded by the adoption of special conservation measures. Otherwise, the objective of creating a coherent network or areas for the conservation of birds would be nullified (art. 4(3)). Although Member States do enjoy a discretionary power in the designation of concerned areas, this power is subject to criteria regarding the importance of areas for birds which are determined in the Directive.^[12] It is only the application of these criteria which is left to the discretion of Member States, while the classification as special conservation areas of the sites which may be identified as the most appropriate, on the basis of these criteria, is compulsory.

The acceptable extent of discretion of Member States in the selection of sites was also considered to have been exceeded in the Commission v. France case of 2001.^[13] Here the Commission argued that the selection of sites submitted by France under the Habitats Directive and the related information were insufficient, submitting that discretion may not exceed three basic conditions: only scientific criteria must guide the selection; selected sites must ensure uniform coverage of the land area of each State, reflecting the ecological diversity of habitats and species; and habitat types or species listed in annexes to the Directive which exist within the territory of a State must be adequately represented in the list.

In Commission v. Italy,^[14] the Court specified that pursuant to the Birds Directive (art. 4(1)) Member States have an obligation to establish special protection areas and special conservation measures for each of the species listed in Annex I. It is not up to the Commission, but rather to Member States, to identify species which are found within each State and take action accordingly. A precise implementation of the Directive is considered to be particularly important in this case, as the management of a common heritage is entrusted to each Member State in respect of its territory.

Among the claims frequently rejected by the Court is the justification of a State's action based on economic reasons, as seems to be possible under article 2 of the Birds Directive. In the "Lappel Bank" case,^[15] the Court ruled that economic reasons such as those mentioned in article 2 of the Birds Directive may not be considered with regard to the classification of an area (which in this case included the "Lappel Bank" coastal area) as a special protection area, nor with regard to its delimitation. Although it is possible under the Habitats Directive to carry out a plan or project in spite of a negative assessment of the implications for a site, for imperative reasons of overriding public interest, including those of a social or economic nature, with the adoption of appropriate compensatory measures (art. 6(4)), and this provision is made applicable (by article 7 of the Habitats Directive) also within the context of the Birds Directive, this justification does not apply to the initial phase in which areas are selected and classified.

The economic and recreational reasons referred to in article 2 were considered inadequate as reasons for exemptions from the obligations arising from the Directive also in the "Marismas de Santoña" case^[16], in which the government of Spain was found to have violated the obligation to adopt special measures of conservation with respect to the Marismas de Santoña area, a wetland of international importance and of high ecological value. In the same case, the Court stated that States’ discretionary powers as to the identification of appropriate sites are limited by the ornithological criteria determined in the Directive, such as the existence of birds listed in Annex I and the qualification of an area as a wetland. States do not enjoy the same discretionary powers when modifying or limiting the extent of special protection areas.

In a previous case, Commission v. Germany,^[17] the Court had considered the economic and recreational reasons referred to in article 2 to be insufficient to justify the reduction of the size of a special protection area. According to this decision, such a reduction may be justified exclusively by exceptional reasons. While Member States enjoy a certain degree of discretion for the identification of appropriate sites with a view to the creation of special protection areas, their discretionary power is more limited when they wish to reduce the size of existing special protection areas.^[18]

Some of the Court's decisions give an interpretation of controversial provisions in the Directives. In the WWF v. Veneto Region case,^[19] the Court specified the interpretation of the provisions concerning derogations from prohibitions to hunt set out in the Birds Directive. Pursuant to these provisions, only species listed in Annex II may be hunted (art. 7(1)), but States may envisage exemptions from this and other restrictions for the reasons specified in article 9, relating mainly to public health and security, protection of fauna and flora and scientific purposes, and specifying all applicable conditions, such as concerned species, authorized methods of hunting and authorities to be responsible (art. 9(2)). There must be no other satisfactory solution.

Being one of the parties in the dispute, WWF alleged the illegitimacy of the derogations set out by the Veneto Region, which had been established without submitting the reasons to justify them. The Court stated that one of the reasons specifically envisaged in article 9 must exist, and the specific formal requirements envisaged in article 9(2), which aim at limiting exemptions to strictly necessary cases and to allowing surveillance by the Commission, must be complied with. In Italy, it is the national framework law on protection of wildlife and hunting which authorizes the regional administrations to legislate on hunting, authorizing generally also the hunting of species which are prohibited under Annex II of the Directive. As the criteria justifying this general exemption were not specified at the national level, nor were the regions required to take into account the Directive's criteria, the Court held that the conditions envisaged in article 9 of the Directive cannot be considered to have been met.^[20] The Court also emphasized that as in this field the management of the European common heritage is handed over to individual Member States, it is particularly important to precisely implement the Community Directives.

In interpreting article 7(4) of the Birds Directive in the Association pour la protection des animaux sauvages et al. v. Préfet de Maine-et-Loire and Préfet de la Loire Atlantique case,^[21] the Court held that hunting seasons for migratory species and waterfowl must be determined with a view to a complete protection of these species in the period of migration preceding matching. Therefore, the closing date of hunting must coincide with the beginning of the migration preceding matching for each species. Any methods leading to excluding a certain percentage of birds from such complete protection may not be considered to comply with the Directive.

The fixing of different closing dates by species is incompatible with the text of article 7(4), third sentence, unless scientific evidence is given that this does not hinder the complete protection of concerned species. If the power to determine hunting seasons is delegated to lower-level authorities, the provisions which delegate such powers must be formulated in such a way that the closing date be fixed with a view to enabling complete protection in the period of migration preceding matching. Dates may vary from one region to another within a single State, as long as this condition is met.

In the "Didier Vergy" case,^[22] the Court held that Member States are required to forbid the trade even of species which are not listed in annexes to the Birds Directive, as long as such species have their natural habitat within the Member States’ territory, unless exempted pursuant to article 9. It would be incompatible with the Directive for a State to limit protection to species which may be considered its own national heritage, given the importance of ensuring an effective and complete protection of all bird species within the whole Community territory. On the contrary, the Court specifies that the Directive does not apply to birds born and raised in captivity, and Member States remain responsible for regulating trade in such specimens.

In the "Godefridus van der Feesten" decision^[23] , the Court further stated that the Birds Directive applies to subspecies of birds naturally occurring in the wild only outside the Member States' territories, if the species they belong to, or other subspecies belonging to the same species, do occur within any of the Member States' territory. The Court considered the Directive equally applicable by all Member States, including those within whose territory certain habitats and species do not occur, extending protection to subspecies which are not found within the Community.