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C 110 E/90 Official Journal of the European Union EN 8.5.

2003

To achieve this objective, the Commission plans to present a methodology paper setting the principles and
the structure of charging for the use of infrastructure in all modes of transport. On the basis of this paper
and reactions received in the consultation process, more detailed common rules may be put forward.

The Commission has recently adopted a proposal (3) setting out the criteria for establishing a separate tax
category for diesel fuel used for commercial purposes (commercial diesel fuel). The main aim is to
uncouple the taxation on fuel used for commercial purposes from that on fuels used for private purposes,
and by 2010 to achieve an upward harmonisation of taxes on commercial diesel fuel, which would reduce
distortion of competition among operators.

With regard to ecopoints, following to the conclusions of the Laeken European Council, on 20 December
2001 the Commission has adopted a proposal for a Regulation (4) extending the ecopoint system as a
temporary solution for the year 2004. This extension is in line with the policy on environmental
protection in vulnerable areas such as the Alpine region and is only a transitional measure while waiting
for the adoption of relevant measures mentioned above.

In any case the Commission will make sure that freedom to provide transport services within the single
market will be guaranteed, while avoiding any competition distortions that may arise from unilateral
decisions taken in this field.

(1) Directive 1999/62/EC of the Parliament and of the Council of 17 June 1999 on the charging of heavy goods
vehicles for the use of certain infrastructures, OJ L 87, 20.7.1999.
(2) White Paper on the European Transport Policy for 2010: time to decide, COM(2001) 370 final.
(3) Proposal for a Council Directive, COM(2002) 410 final, amending Directive 92/81/EEC and Directive 92/82/EEC to
introduce special tax arrangements for diesel fuel used for commercial purposes and align the excise duties on
petrol and diesel fuel.
(4) Proposal for a regulation of the Parliament and of the Council establishing an ecopoint system applicable to heavy
goods vehicles travelling through Austria for the year 2004, OJ C 103 E, 30.4.2002.

(2003/C 110 E/092) WRITTEN QUESTION E-2688/02


by Benedetto Della Vedova (NI) to the Commission

(26 September 2002)

Subject: Breach of Council Directive 79/409/EC of 2 April 1979 by the Italian Republic through the
Lombardy region’s Law No 18 of 7 August 2002

Law No 18 of 7 August 2002 enacted by the Lombardy Region has authorised, during the 2002/2003
hunting season, the hunting of the following species of wild birds that are protected by Directive 79/409/
EEC (1):

 Passer italiae, Passer montanus and Sturnus vulgaris (Italian sparrow, tree sparrow and starling) from
1 September to 30 December, allowing each hunter to take 20 a day and up to 100 a year;

 Fringilla coelebs and Fringilla montifringilla (chaffinch and brambling) from 15 September to
30 December, with each hunter being allowed to take up to five a day and 40 a year.

According to the Court of Justice (judgment of 17 May 2001 in Case C-159/99), Article 9(2) of Council
Directive 79/409/EEC ‘requires an administrative authority to determine in respect of the cases falling
within the scope of Article 9(1), if the conditions of that paragraph are fulfilled, in what area and for what
birds hunting may exceptionally be authorised. The authorities responsible under Article 9(2) of the [birds]
directive must also examine whether there is any other satisfactory solution which would allow the
problem in the particular case to be resolved without the need to resort to the granting of a derogation.’

However, this derogation has been granted not by an administrative authority, identified in advance, under
a regular administrative procedure, but directly by regional law No 18/2002. Consequently, the existence
of the conditions required by the directive has been affirmed in the shape of an incontrovertible legal
certainty. In the case of the Fringilla coelebs and Fringilla montifringilla species, the derogation allowing
hunting has been made on the grounds of the ‘favourable health status’ of the two species, in blatant in
violation of Article 9(1)(c) of the Directive.
8.5.2003 EN Official Journal of the European Union C 110 E/91

As a result of such regional laws, the Italian Republic has failed to satisfy the obligations incumbent upon
it under the Treaties as it is incompatible with the Community legal order for a Member State, or one of
its territorial entities, to adopt at close intervals legislation which is essentially of an administrative nature,
in order to avoid complying with Community law.

Does the Commission intend to bring infringement proceedings against the Italian Republic, pursuant to
Article 226 of the EC Treaty, for the breach of Directive 79/409/EEC resulting from the Lombardy region’s
law No 18 of 7 August 2002.

(1) OJ L 103, 25.4.1979, p. 1.

Answer given by Mrs Wallström on behalf of the Commission

(11 November 2002)

Under Article 9 of the Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, Member
States may derogate from the provisions of Articles 5, 6, 7 and 8, where there is no other satisfactory
solution, for the following reasons:

(a)  in the interests of public health and safety,


 in the interests of air safety,
 to prevent serious damage to crops, livestock, forests, fisheries and water,
 for the protection of flora and fauna;

(b) for the purposes of research and teaching, of re-population, of reintroduction and for the breeding
necessary for these purposes;

(c) to permit, under strictly supervised conditions and on a selective basis, the capture, keeping or other
judicious use of certain birds in small numbers.

The derogations must specify:

 the species which are subject to the derogations,

 the means, arrangements or methods authorised for capture or killing,

 the conditions of risk and the circumstances of time and place under which such derogations may be
granted,

 the authority empowered to declare that the required conditions obtain and to decide what means,
arrangements or methods may be used, within what limits and by whom,

 the controls which will be carried out.

In the light of the above, it should be noted that the above-mentioned Directive does not prevent Member
States from granting derogations by ad hoc legislative acts limited in time, provided that they comply with
the reasons and the conditions listed in paragraphs 1 and 2 of Article 9. In particular, derogations should
be based on a declaration, from the empowered authority, that the required conditions are met.

In the specific case, since the Commission is not aware of the situation described by the Honourable
Member, it will take the appropriate steps to gather detailed information and to ensure, within the limits
conferred on it by the EC Treaty, the observance of Community law.

Should the Commission be informed that Community law is being breached in the specific case, it would
not hesitate, as the Guardian of the EC Treaty, to take all necessary measures, including infringement
procedures under Article 226 of the EC Treaty, in order to ensure the observance of relevant Community
law.