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Wild Birds, Interim Measures and Malta: Case C-76/08 R

By Bartolus

The President of the Court of Justice granted an injunction against Malta in Case C-76/08 R Commission v. Malta preventing it from adopting measures to allow the hunting of quails and turtle doves in the 2008 spring migration.

The Commission brought proceedings based on Article 226 EC against Malta alleging the breach of Article 7 of Directive 79/409/EEC on the conservation of wild birds because it claims that Malta systematically allowed the hunting of those birds without complying with the strict conditions laid down in Article 9 of that Directive.

The Commission also requested the Court to order Malta from refraining from adopting any measures to apply Article 9 of Directive 79/409/EEC for the spring migration in 2008 and 2009 on the basis of Article 243 EC.

The President of the Court granted the injunction for 2008 but held that there was no urgency to do so for 2009.

Interim measures can be granted when three cumulative conditions are fulfilled :
The plaintiff - in this case, the Commission - makes out prima facie case;
The loss and damage likely to occur if the measures are not granted must be irreparable,
The matter must be urgent and cannot wait for judgment in the main case.

In this case, a tricky issue was the nature of the loss and damage likely to be suffered. Interestingly, the President held that EC legislation on the conservation of wild birds must be interpreted in the light of the precautionary principle, which is one of the foundations of the high level of protection pursued by EU environmental policy, in accordance with the first subparagraph of Article 174 §2 EC (see, by analogy, Case C-127/02 Waddenvereniging and Vogelbeschermingsvereniging, paragraph 44).

Thus, when assessing urgency, the protection of birds covered by Directive 79/409 is regarded as being a matter where management of the common heritage is entrusted to the member States in relation to their respective territories (see Case C-60/05 WWF Italia and Others, paragraph 24). The President recalled that any hunting activity is liable to disturb wild fauna and it may in many cases affect the conservation status of the species concerned, irrespective of the extent to which it depletes numbers. The regular elimination of individual animals keeps the hunted populations in a permanent state of alert which has harmful consequences for numerous aspects of their living conditions (Case C-435/92 Association pour la protection des animaux sauvages and Others, paragraph 16, and order of the President of the Court of 19 December 2006 in Case C?503/06 R Commission v Italy, paragraph 17, published in summary form).

We haven't made a proper statistical study but it seems that the number of interim measures actions brought by the Commission against member States is on the increase.

Full post as published by EU Law Blog on May 24, 2008 (boomark / email).