EN

Official Journal of the European Union

C 180/28

(Case C-164/09)

2009/C 180/48

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: C. Zadra and D. Recchia, acting as Agents)

Defendant: Italian Republic

Form of order sought

—Declare that the Italian Republic has failed to fulfil its obligations under Article 9 of Directive 79/409/EEC, since the Veneto Region has adopted and applies rules concerning authorisation to derogate from the system of protection for wild birds which fail to satisfy the conditions laid down in Article 9 of Directive 79/409;

—Order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Commission submits that the legislation adopted by the Veneto Region does not comply with the requirements laid down in Article 9 of Directive 79/409.

Law No 13 of 2005, in force at the time of expiry of the reasoned opinion, does not comply with the requirements laid down in Article 9 of Directive 79/409 in so far as:

—it identifies generally and in the abstract, without imposing any temporal limits, the species and the numbers covered by the derogation;

—the derogations for individual species of birds are provided for collectively on the basis of a general reference to all the circumstances listed in points (a) and (c) of Article 9, without appropriate explanations being given concerning the specific reasons;

—it does not lay down the requirement that it must be ascertained that there is no other satisfactory solution, or that the individual derogation measures must specify the conditions of risk, the circumstances of place and those who are authorised to apply the derogations;

—it allows the small numbers to be determined without an adequate scientific basis.

The Commission submits that the measures adopted after the expiry of the period prescribed in the reasoned opinion not only fail to cure the defects already identified, but actually reproduce them in substance. The measures concerned are, inter alia, Decree No 140 of the President of the Regional Council of 20 June 2006, Decree No 230 of the President of the Regional Council of 18 October 2006, Regional Law No 24 of 16 August 2007, Decree No 167 of the President of the Regional Council of 4 September 2007, and Regional Law No 13 of 14 August 2008.

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(1) Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1).