Case C-135/04 Commission v Spain
Following the recommendation of the Advocate General, issued on 7 April 2005, Spain has been pulled up by the European Court of Justice (ECJ) for breach of the Wild Birds Directive (Directive 79/409/EEC).
The Commission sought a declaration of the court that, by allowing the hunting of returning migratory birds, in this case woodpigeon (Columba palumbas) returning to their rearing grounds, Spain had failed to comply with Article 7(4) of the Directive.
Article 7(4) provides that in the case of migratory species, Member States "shall see in particular that the species to which hunting regulations apply are not hunted during their period of reproduction or during their return to their rearing grounds".
While Spain put forward a number of reasons for non-compliance, these were found to be inadequate justification of the practice of hunting in Guipúzcoa.
Spain had argued that a derogation from Article 7(4) applied on the basis of Article 9(1)(c) of the Directive since there was no other satisfactory solution and historical and cultural traditions existed supporting such a derogation.
Spain also sought to rely on the judgment in Case 252/85 Commission v France, though this had been given in relation to a derogation from Article 8(1) of the Directive relating to hunting methods, so was inapplicable.
The ECJ therefore held that by allowing the practice of "a contrapasa" hunting of woodpigeons in Guipuzcoa, Spain had failed to fulfil its obligations under Article 7(4) of the Directive.
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