By its application, the Commission of the European Communities sought a declaration from the Court that, by failing to apply the derogation laid down in Article 9(1) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1), the Republic of Finland had failed to fulfill its obligations under that directive.
The Commission argued that the Republic of Finland had authorized, in breach of Article 7(4) of the Directive, spring hunting of certain species of wild aquatic birds referred to in Annex II to that directive during their rearing season, both in mainland Finland and on the islands of Åland.
In its view, the conditions required for the application of the derogation provided for in Article 9(1)(c) of that directive were not fulfilled. It stated in particular that the criteria relating to there being ‘no other satisfactory solution’ and ‘small numbers’ were not met. The Commission argued that there were satisfactory solutions other than spring hunting. It states that eider, golden-eye, goosander and tufted duck, which could be hunted in spring, were generally present in the autumn as well in the territories where spring hunting was practiced.
In any event, the hunting of other species of aquatic birds present in the autumn was another satisfactory solution which could replace spring hunting.
Finland contended that there was no other satisfactory solution for replacing spring hunting as it was currently practiced in Finland.
Article 7(4) of the Directive provided that Member States were to ensure that the mentioned species were not hunted during the rearing season or during the various stages of reproduction. However, Article 9(1)(c) of the Directive permitted authorization of the hunting by way of derogation, under certain conditions, in particular during the rearing season and during the various stages of reproduction. The conditions which had to be met included the absence of any other satisfactory solution.
As regards eider, the Court noted that a considerable number of specimens of that species were present in the spring hunting territories from early autumn onwards. Accordingly, the Court found that the spring eider hunting season, opened under a derogation, did not fulfill the condition that there was no other satisfactory solution as referred to in Article 9(1)(c) of the Directive. The same applied for the spring hunting of golden-eye and tufted duck.
Regarding the long-tailed duck, it was not disputed that it could not be hunted in the autumn in the geographical areas open for spring hunting. The Court noted in this connection that a measure consisting in authorizing the hunting of other species of aquatic birds by way of replacement for the spring hunting of long-tailed duck could not be regarded as another satisfactory solution within the meaning of Article 9(1)(c) of the Directive. Such a solution would risk rendering that provision nugatory, at least partially, because it would allow in certain territories for prohibitions on hunting certain species of birds, even though hunting in small numbers might, in theory, not jeopardize the maintenance of their populations at a satisfactory level.
It followed that the spring hunting of long-tailed duck fulfilled the condition that there was no other satisfactory solution, as referred to in Article 9(1)(c) of the Directive. In conclusion, the Commission’s complaint that the spring hunting of eider, golden-eye, red-breasted merganser, goosander, velvet scoter and tufted duck did not comply with the condition that there was no other satisfactory solution, as referred to in Article 9(1)(c) of the Directive, was upheld.
Finally, the court held that the Commission’s complaint, that the spring hunting of eider, goosander, red-breasted merganser and velvet scoter did not comply with the requirement relating to the capture of birds in small numbers, as referred to in Article 9(1)(c) of the Directive, also had to be upheld.