30.1.2010

EN

Official Journal of the European Union

C 24/45

(Case C-508/09)

2010/C 24/78

Language of the case: Italian

Parties

Applicant: European Commission (represented by: C. Zadra and D. Recchia, Agents)

Defendant: Italian Republic

Form of order sought

The applicant claims that the Court should:

—declare that the Italian Republic has failed to fulfil its obligations under Article 9 of Directive 79/409/EEC (1) in so far as the Region of Sardinia has adopted and applies legislation, relating to the authorisation of derogations from the rules for the protection of wild birds, which does not comply with the conditions laid down in Article 9 of Directive 79/409/EEC;

—order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Commission maintains that the legislation adopted by the Region of Sardinia is not in conformity with the provisions laid down in Article 9 of Directive 79/409/EEC.

According to the Commission, Regional Law No 2 of 13 February 2004, which governs hunting carried out in reliance on a derogation, and Decrees No 3/V of 2004 and No 8/IV of 2006, which were adopted on the basis of that law, fail to comply with the requirements under Article 9 of Directive 79/409 inasmuch as:

—sometimes the opinion of the scientific body is sought but, if negative, ignored and sometimes the opinion of that body is not even sought;

—adequate reasons have not been stated (concerning the needs to be protected by means of hunting in reliance on a derogation; the other options explored; the probable results);

—there is no adequate control mechanism making it possible to check that the conditions governing derogation are complied with and to take action in good time;

—the regional law does not require compliance with the conditions laid down in Article 9(2) of Directive 79/409 and, accordingly, no reference is made to those conditions in the derogation measures.

Regional Law No 2 of 13 February 2004 was amended by Regional Law No 4 of 11 May 2006. Notwithstanding those amendments, neither Law No 2 of 13 February 2004 nor Decree No 2225/DecA/3 of 30 January 2009, which was adopted pursuant to that law, satisfies the requirements laid down in Article 9 of Directive 79/409, inasmuch as:

—the fact that provision has now been made for consultation of the scientific body does not preclude the adoption of derogation measures without adequate reasons or justification or even the adoption of derogation measures without the opinion of the scientific body;

—Regional Law No 2/2004, as amended, still does not provide that individual derogation measures must refer to the conditions laid down in Article 9(2) of Directive 79/409 (indeed Decree 2223 is also deficient in that respect).

(1) Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ L 103, 25.4.1979, p. 1).