Article 37 - Environmental protection
Key facts of the case:
Request for a preliminary ruling from the Conseil d'État.
Reference for a preliminary ruling – Environment – Directive 2009/147/EC – Conservation of wild birds – Articles 5 and 8 – Prohibition of the use of any method of capture of birds – Article 9(1) – Authorisation to use, by way of derogation, a traditional method of capture of birds – Conditions – No other satisfactory solution – Preservation of that traditional method as the sole justification for the absence of an ‘other satisfactory solution’ – Selectivity of catches – National legislation authorising the capture of birds using limes.
Outcome of the case:
On those grounds, the Court (First Chamber) hereby rules:
23) However, the referring court observes that, in the judgment of 21 June 2018, Commission v Malta (C‑557/15, EU:C:2018:477), which was delivered after the entry into force of Article 3 TEU and Article 37 of the Charter of Fundamental Rights of the European Union (‘the Charter’), the Court held that national legislation authorising another traditional hunting process did not fulfil one of the conditions laid down in Article 9(1)(c) of the Birds Directive in order to be able to derogate from Article 8 of that directive, namely the selective nature of the method of capture concerned, relying on the existence of ‘by-catch’ without specifying the size of that by-catch.
60) Furthermore, that directive comes within the framework provided for both in Article 3 TEU and in Article 37 of the Charter, provisions according to which, in essence, the European Union is to work for sustainable development and ensure a high level of protection of the environment.
65) It follows from the wording of Article 9(1)(c) of the Birds Directive, read in the light of Article 8(1) of that directive, from the objectives of that directive and from the framework within which it falls, a framework which is based on the provisions of Article 3 TEU, of Article 37 of the Charter, of the first subparagraph of Article 191(2) TFEU and of Article 13 TFEU on animal welfare, that the condition of selectivity laid down in Article 9(1)(c) of that directive must be understood as meaning that it can be satisfied, in the case of a non-lethal method of capture leading to by-catch, only if that by-catch is limited in size, that is to say, it concerns only a very small number of specimens captured accidentally, for a limited period, and only if those specimens can be released without sustaining harm other than negligible harm.