The European community directive on bird conservation

The European community directive on bird conservation

BiologicalConserration22 (1982) 11 25 THE EUROPEAN COMMUNITY DIRECTIVE CONSERVATION ON BIRD JOHN TEMPLE LANG* Legal Service, EEC Commission, 104...

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BiologicalConserration22 (1982) 11 25

THE

EUROPEAN

COMMUNITY DIRECTIVE CONSERVATION

ON BIRD

JOHN TEMPLE LANG*

Legal Service, EEC Commission, 1049 Brussels, Belgium

ABSTRACT

The Council ojthe European Community in 1979 adopted a directive and a resolution on bird conservation. The directive imposes legal obligations on EEC member states to take special measures to protect the habitat j o r migrator)' species and listed rare species in the most suitable areas throughout the Community. The aim is to set up a network of areas forming a coherent whole. Criteria to be used in selecting such areas are discussed and the importance o f the clauses evaluated. The terms of the directive providing j o r scientific research on bird conservation, and for harmonisation o f national laws, are analysed. The directiveJorms a legal basisJor a Community policy on bird conservation and nature reserves Jor birds.

INTRODUCTION

In April 1979 the Council of the European Community adopted a directive on conservation of wild birds, and a resolution concerning the special protection areas for birds to be set up as required by the directive (O.J.C.E., 1979; for a valuable and important study setting out the background to the directive see Cramp, 1977). These measures are major steps for the Community in the sphere of wildlife conservation. They are important for the Member States of the Community (Belgium, Denmark, West Germany, France, Ireland, Italy, Luxembourg, the Netherlands and the United Kingdom), for the new Member, Greece, and for the two applicants for membership, Spain and Portugal. They are also important for bird conservation in Europe as a whole. * Legal adviser, Legal Service. EEC Commission, and Chairman, European Continental Section, International Council for Bird Preservation. This article represents only the author's personal opinions.

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Biol. Conserr. 0006-3207/82/0022-0011/$02.75 ~' Applied Science Publishers Ltd, England, 1982

Printed in Great Britain

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A directive is a Community legal measure binding on Member States as to the result to be achieved but which leaves to national authorities the choice of form and methods of bringing about that result (Article 189 EEC Treaty). It is binding on all responsible national authorities, national and regional, including State enterprises. The directive, which was unanimously adopted, is based on Article 235, EEC Treaty, and is pursuant to the Community's first action programme on the environment (O.J.C.E., 1973). It begins by noting that the species of wild birds which occur naturally in the European territory of Member States are mainly migratory, and that effective bird protection is a trans-frontier environment problem involving common responsibilities. It points out the need for measures applying to man's activities which affect bird numbers, in particular destruction and pollution of habitats, and capture and killing by man. Preservation, maintenance and restoration of a sufficient diversity and area of habitats is essential to the conservation of all species of birds. Migratory species and certain other species need special measures of habitat protection, and these measures must be coordinated to form a coherent whole throughout the Community. This paper considers: (1) (2) (3) (4) (5)

the terms of reference of the directive and its general policy; the habitat protection provisions; the provisions on scientific research; the provisions on changes in national bird protection laws; general comments and implications.

TER1V~S OF R E F E R E N C E A N D G E N E R A L P O L I C Y OF THE D I R E C T I V E

The directive is comprehensive. It applies to all species of birds occurring naturally in the wild state in all the European territories of Member States, but not to Greenland or to the French overseas departments and territories. It applies to the habitats of all these species, as well as to their nests and eggs. Article 2 of the directive obliges Member States to take the requisite measures to maintain the populations of all these species at, or adapt them to, a level corresponding to ecological, scientific and cultural requirements, while taking economic and recreational requirements into account. Economic and recreational needs, including hunting, are subordinate to scientific ones. The directive permits hunting of certain species provided that it is compatible with maintaining the population of the species hunted at a satisfactory level. These general but legally binding obligations are made more concrete and specific, notably by other clauses in the directive. They are explained and justified by the considerations set out in the preamble to the directive.

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HABITAT PROTECTION (ARTICLES 3--4) The first clause on habitat protection is a general one. In the light o f the requirements o f Article 2, set out above, M e m b e r States are obliged to take the requisite measures to preserve, or if necessary to re-establish, a sufficient diversity and area o f habitats for all the species to which the directive applies. The i m p o r t a n t principle is recognised that bird populations m a y already be too low, and that positive steps m a y be necessary to increase them, not merely to prevent further decline. This is i m p o r t a n t in particular in relation to species o f which larger populations would be positively desirable. The measures necessary include primarily creation o f areas where habitat is protected, upkeep and m a n a g e m e n t o f habitats inside and outside the specially protected zones, and re-establishment and creation o f habitats, a This obliges M e m b e r States to undertake policies for nationwide habitat maintenance, even outside nature reserves and similar areas. States are also required to try to avoid pollution or deterioration of habitats everywhere (Article 4(4)). Article 4 is more specific. States are obliged to take specific local and regional habitat conservation measures to ensure the survival and reproduction o f all regularly occurring migratory species, in their breeding, moulting and wintering areas and "staging posts' on their migration r o u t e s ) Particular attention is to be paid to wetlands, especially those ' o f international importance'. This term, which is not defined in the directive, is discussed below. M e m b e r States are also obliged to take similar measures for certain named species listed in Annex I to the directive. These include species which are in danger o f extinction in the C o m m u n i t y , those vulnerable to specific habitat changes, species considered rare because of their small populations or restricted local distribution, and other species needing particular attention because o f the specific nature o f their habitat. Variations and trends in populations must be taken into account. The areas most suitable as special protection areas must be classified, in the light o f the needs o f each species, t h r o u g h o u t the C o m m u n i t y . In other words, potential areas o f special protection must be identified not by reference to national considerations, but in the context o f the C o m m u n i t y as a whole. The EEC Commission has the task o f coordinating national information and proposals to ensure that the areas set up under this Article form a coherent whole which meets the species' needs t h r o u g h o u t the C o m m u n i t y . The English language version uses the words habitats and biotopes, and the words protection and conservation, interchangeably. b This Article implies that if the authoritative scientific viewwas that conservation of a specified area was necessary to avoid the risk of extinction of a given race or species, the Member State in question would have a legal duty to conserve the area: see case 32/79, Commission v. United Kingdom (fisheries measures), judgment of the Court of Justice of the European Communities dated 10 July 1980, 1980 European Court Reports 2403.

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In these special areas, States must take appropriate steps to avoid pollution, deterioration of habitats and any disturbances affecting birds, as far as these would be significant for the purposes of the Article. The Resolution obliges Member States to notify the Commission before April 1981 what areas they have classified for these purposes, what areas they have or intend to designate as wetlands of international importance, and what other areas are already classified under national law which are subject to comparable habitat protection measures. In choosing these areas account is also to be taken of the need to protect biotopes and flora and fauna other than birds. The Council Resolution goes into a little more detail about the duties of the Commission. The network of areas protected or to be protected must fulfil the objectives of the directive (not just the Article), and should be such that it can be integrated into a larger framework should the need arise. The Commission is asked to indicate criteria for determining what parts of the areas chosen need intensive protection and what the minimum size for these parts should be, and how far hunting and other disturbance should be prohibited. In order to carry out its tasks in this respect the Commission arranged with the International Council for Bird Preservation and the International Waterfowl Research Bureau to draw up lists of all the areas throughout the Community which deserve special habitat protection. In the case of waterfowl, criteria for determining what wintering areas are 'of international importance' are well established and have been thoroughly discussed (Smart, 1976). These criteria were recognised by the European Community Economic and Social Committee in its opinion in the proposal of the directive (O.J.C.E., 1977). Extensive further discussions took place at the conference in November 1980 in Cagliari of the States signatory to the R a m s a r Convention (IWRB, 1980). ICBP and IWRB were asked to consider whether any other criteria should also be applied to areas which are important for the species listed in Annex I, or for areas which are ' o f Community importance' even though not fulfilling all the requirements of the IWRB criteria. IWRB's normal criteria for waterfowl include statements that an area i s ' o f international importance' if it 'supports an appreciable number of an endangered species of plant or animal, or is of special value for maintaining genetic and ecological diversity because of the peculiarities of its flora and fauna, or plays a major role in its region as the habitat of plants and of aquatic and other animals of scientific.., i m p o r t a n c e . . , or regularly supports 1 ~o.. - of the flyway or biogeographical population of one species of waterfowl'. The terms 'flyway' and 'biogeographical population', which seem crucial, are not defined by the formal I W R B recommendations. Assuming the population of the flyway or biogeographical unit can be estimated, the 1 ~o criterion is relatively easy to apply, and it provides protection where large numbers of birds occur in limited areas, and are vulnerable. Any area meeting the 1 ~o criterion clearly merits conservation. IWRB could make more use of its own non-quantitative criteria. Also the I W R B criteria do not expressly mention areas where large numbers of waterfowl occur only in very cold winters. This is important

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in connection with areas in Ireland, Belgium and northern France to which waterfowl from further east move in unusually cold weather, a time when they are anyway especially vulnerable. How satisfactory are the IWRB criteria (not merely the 1 "j,,, criterion) for species other than waterfowl? First, the criterion "an area which supports an appreciable number of an endangered species' is obviously appropriate to all kinds of birds: any such area must be 'of international importance'. This would be relevant to many of the species in Annex 1. Secondly, the criterion of ~special value for maintaining genetic and ecological diversity', though not always easy to apply, is relevant to the assessment of breeding populations within the Community of species which have large breeding populations elsewhere. Whether in such circumstances the populations breeding within the Community should be regarded as being 'of international importance' depends on their absolute numbers and on the extent to which they appear to be geographically or ecologically distinct from the other populations of the same species. An assessment has to be made, in the light of available knowledge, for each species, in particular each species in Annex I. For some species, notably certain geese, ducks and waders, it is clear that there is more than one flyway or biographical population in Europe, and the same is almost certainly true of many other species. Seabirds are clearly migratory species in need of special habitat protection at their breeding colonies. Most species breed in a fairly small number of fairly large colonies which are likely to be vulnerable to local pollution, disturbance, ground predators, or other threats. The Community Member States, in particular Britain and Ireland, hold a number of large and important seabird colonies, in which a large proportion of the Atlantic population (in some cases, of the world population) breed annually. It is reasonable to use the criterion of 1 ~,~,of the breeding population of each species within the Community, for colonial breeding species. For some of these species the populations breeding within the Community are biogeographical populations separate from those elsewhere, c However, the major British and Irish seabird colonies hold absolute numbers which are certainly large enough to demand that they should be regarded as being internationally important, and they would also qualify as playing 'a major role in (the) region as the habitat o f . . . a n i m a l s . . , of scientific importance', Therefore. even though there are very large colonies of fulmar Fulmarus glacialis, kittiwake Rissa tridactyla, puffin Fratercula arctica and guillemot Uria aalge breeding in Iceland, Greenland and the Arctic, the major Community colonies are without doubt of 'international importance' by several of the accepted criteria. The colonies c There are separate seabird populations which have to be recognised for conservation purposes. The southern race of the guillemot Uria aalge albionis is a distinct form breeding only in the C o m m u n i t y and in Iberia: its numbers are small and declining. The southern race of the puffin Fratercula arctica grabae also occurs in Norway, but a large proportion occurs within the EEC, and its numbers are decreasing. The nominate race of the manx shearwater Puffinus puffinus puffinus is virtually confined to the Community, and so are several races of Larus species.

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of a number of seabirds breeding colonially in the Mediterranean qualify as b e i n g ' o f special value for maintaining genetic and ecological diversity'. For seabirds which do not breed colonially, as for other species which are dispersed throughout the year, local habitat protection is not necessarily the most important or useful measure. In spite of the fact that many important bird areas in the Community would qualify under one or more of the non-quantitative criteria used by the IWRB as tests of 'international importance', a supplementary category has been suggested. This would treat as of 'Community importance' areas in which 50 ~,,, or more of the breeding population of the Community of a given species are found. This would include, for example, areas like the breeding locality in Ireland of the c o m m o n scoter (Melanitta nigra), but this area would also clearly qualify under the genetic diversity criterion. The fact that an area does not qualify under any of the criteria normally used for determining 'international importance' does not. of course, mean that it need not be protected, only that it is the responsibility of the national authorities to protect it, and that it is not of high enough priority to necessitate international action. It should also be stressed that this article has not mentioned all the IWRB criteria, but only those most obviously relevant to the directive: there are also criteria for representative or unique wetlands, and wetlands of research or educational value, which are equally applicable in principle to ecosystems other than wetlands, and to birds other than waterfowl. Although for practical and other reasons the directive is drafted in terms of providing special habitat protection areas for species of birds, the concept of habitat protection itself, and the non-quantitative criteria for 'international importance', oblige the Community to think in terms of conserving ecosystems of which the bird species in question form only a part. This is recognised by the Council Resolution, already quoted. In some cases breeding populations within the Community of Annex I species which are not important for the species would be protected by the habitat protection which should be given to the areas in question on botanical or ecological grounds. Lists of areas within the Community which require, or at least deserve, special measures of habitat protection have been prepared by ICBP and IWRB. These lists deal primarily with waterfowl, seabirds, and the species listed in Annex I. If all the areas listed were adequately protected, they would provide habitat protection at the majority of important sites for waterfowl and seabirds in the Community. The areas in question would, of course, also provide protection for some species as well as those for which they are primarily to be protected. However, there are several major fields where further work is needed. First, areas which are important for species other than seabirds, waterfowl and Annex I species need to be listed. These areas include for example, raptor breeding areas, roosts for migrants, and 'bottlenecks' for migrants such as mountain passes,

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apart from breeding and wintering concentrations of passerines. In such areas local protection, both of the habitat, and from disturbance and shooting, would be valuable, and is needed. To list all the areas in these categories more work, including more fieldwork, is needed: for species which are always dispersed, the general habitat protection clauses in Article 3 of the directive are relevant. For most passerine species there are no convincing estimates of the populations within the Community, so percentages of total populations are meaningless. Secondly, more information is needed about many of the sites which have been listed. For each site one would need to know the areas requiring each type of habitat protection, and to know how best it could be ensured. Fieldwork may be needed to decide whether a site is, for each species concerned, a sufficient and self-contained area, or to what extent protection is also needed in nearby areas which are for example, feeding areas, roosts, flighting areas, sources of water, etc. Detailed ecological descriptions of each site. covering human activities and threats to the habitat, and information about ownership, will be needed. The 'island effect' of nature reserves which are too small to be viable must be kept in mind (Diamond, 1975): it is difficult to resist the conclusion that many existing nature reserves are much too small. Certainly for species such as raptors with large territories, and for waterfowl in areas where fluctuating waterlevels make particular wetlands temporarily useless, large protected areas are essential for effective conservation. Large areas of forest are also essential for certain rare species such as the large raptors and black woodpecker Dryocopus martius (an Annex I species). In no case can a site be considered satisfactory unless it is large enough to provide all the requirements of a number of the birds for which it is established. Of course, habitat protection need not necessarily be uniform throughout the area protected. Further work needs to be done on estimates of the total numbers of many species and on population trends within the Community and in neighbouring countries (Merikallio, 1958; Moreau, 1972). Only when such estimates are available can the importance of some sites be assessed. In particular in Member States where less counting has been done, there are almost certainly areas not now listed which are just as important as many areas which are better known. There are special problems with certain species. Terns Sterna spp. tend to move when they are disturbed (and even when they are not), and alternative sites may need to be protected for them, even when it is clear which site is preferred in the absence of disturbance. Some tern colonies are physically vulnerable to storms, and may be washed away entirely at times, making alternative sites essential. Special measures are needed in certain places on the frontiers of the Community which hold, or through which pass, large numbers of birds. These include the passes of the Pyrenees, the Kattegat and Skagerrak, Gibraltar and the Bosphorus and the

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Dardanelles. In these areas the C o m m u n i t y may need to take joint action with the other country involved in order to provide effective protection. The Community will need to coordinate its policy on setting up nature reserves with its policies on other matters, notably agricultural and arterial drainage and land reclamation. It would be absurd for the Community to be simultaneously granting money for drainage of wetlands and for their preservation as reserves for birds. This problem can be dealt with satisfactorily with an approved list of wetlands to be conserved under the directive.

SCIENTIFIC RESEARCH

The directive and accompanying resolution visualise scientific research in connection with the listing of important sites, discussed above. The Commission has arranged (Article 6(4)) studies on the status of nine named species which at present can be both hunted and sold commercially in one or more Member States of the Community. More important, Member States agreed to encourage research and 'any work required' as a basis for the protection, management and use of all species of wild birds. Particular attention is to be paid to listed research fields (Annex V) and the Commission is to coordinate research in these areas throughout the Community. The specified fields of research are all practical in orientation. They are: (i)

National lists of species in danger of extinction or particularly endangered species, taking into account their geographical distribution. (ii) Listing and ecological description of areas particularly important to migratory species on their migratory routes and as wintering and nesting grounds. (iii) Listing of data on the population levels of migratory species as shown by ringing. (iv) Assessing the influence of methods of taking wild birds on population levels. (v) Developing or refining ecological methods for preventing the type of damage caused by birds. (vi) Determining the role of certain species as indicators of pollution. (vii) Studying the adverse effect of chemical pollution on population levels of bird species. Although this list does not mention all the topics on which research would be useful (and is being done) on bird conservation problems, it is clear that if all research in the C o m m u n i t y were coordinated fully and the gaps which must now exist were filled, there would be a scientific basis for a unified Community policy on bird conservation. Such a basis is essential for a policy free from the often short-sighted

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pressure of interest groups. In the longer term it will no doubt be desirable to think of unified (not merely coordinated) scientific research policies in the field of bird conservation. Scientists and conservationists, as well as the Commission, must accustom themselves to thinking about the scientific side of bird conservation on this European scale, disregarding national frontiers within the Community, except insofar as they may still have some ecological significance. H A R M O N I S A T I O N OF N A T I O N A L L A W S O N B I R D C O N S E R V A T I O N

The directive harmonises existing national laws on the basis of the principle that all species are protected except for named quarry species and except in specified circumstances which necessitate the killing or capture. This is the only sound basic principle for bird protection laws, since it minimises recurring identification problems and avoids difficulties with accidental species and species new to national lists (Temple Lang, 1971). The general basic protection principle extends to prohibiting deliberate killing and capture by any method: deliberate destruction of, or damage to, nests and eggs; and removal of nests; taking eggs in the wild, and keeping them; and keeping species the hunting and capture of which is prohibited. It also prohibits, less precisely, 'deliberate disturbance.., particularly during the period of breeding and rearing, insofar as disturbance would be significant having regard to the objectives of this directive' (Article 5(d)). On this the terms of the national legislation implementing the directive will be important. Member States may have stricter protective laws than are required by the directive (Article 14), but these provisions form comprehensive principles for legislative protection at national level. The overall effectiveness of these principles in practice will depend on the terms of the implementing national legislation, how effectively it is enforced, and on the use of the exceptions permitted by the directive (and of course on national laws on quarry species, which are only partially harmonised by the directive). Member States have legal obligations under Community law not only to adopt national legislation in accordance with directives but also to enforce it whenever it is appropriate to do so : widespread or consistent failure to enforce national laws implementing a directive would be a breach of national obligations under Community law. Member States are also obliged to prohibit all means of hunting, killing and capture used for large-scale or non-selective capture or killing, or'capable of causing the local disappearance' of a species (Article 8(i)). This is a general obligation, but a non-exhaustive list of these means is given in Annex IV. This list includes nets, traps, poisoned bait, bird lime, live birds which are blind or mutilated, tape recorders, electrocuting devices, explosives, artificial light sources, and semi-automatic and automatic weapons with magazines capable of holding more than two rounds of

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ammunition. This list thus covers both devices which would otherwise be used in normal sport, cruel or undesirable bird catching devices, and methods for exterminating large flocks of species regarded as pests. These provisions, if adequately enforced, should greatly reduce the large scale destruction of passerines in the south of the Community, much of which is now caused by netting and liming, which will become illegal. All hunting from aircraft and motor vehicles must be prohibited. In addition, there must be no hunting from boats driven at a speed of over 5 kph, although in the open sea Member States may authorise use of boats with a higher maximum speed. Boats with such higher maximum speeds may be needed for safety reasons to ensure that sportsmen can get home against the wind and tide. Again, the exact terms of implementing national legislation will be important. Subject to these specific rules as to permissible hunting methods, hunting of the quarry species listed in Annex II may be permitted by national law (Article 7). Twenty-four species listed may be hunted, subject to the terms of national law, throughout the Community; in fact some of these are not now legal quarry in some of the Member States where they occur. In addition a further 48 species may, if national law so permits, be hunted in the States listed in Annex II in respect of each species, broadly, the countries in which the species are now legal quarry. This list unfortunately includes six species of passerines which are hunted only in France and Italy. The inclusion of these species in the Annex caused much controversy at the time of the adoption of the directive, and no doubt will continue to do so until they are removed from the list of quarry species. However, the cost of cartridges and the fact that netting of small birds will henceforth be illegal may reduce the scale of the problem. Member States have a general obligation to ensure that hunting does not jeopardise conservation efforts in the distribution area of the species in question, whether in other Member States or not (Article 7). It would obviously be undesirable if excessive hunting was occurring in one Member State of a species on which conservation money and effort was being spent elsewhere. More specifically, Member States must ensure that hunting as in fact carried on complies with "the principles of wise use and ecologically balanced control' of the species, i.e. sustained yield. They must also ensure that hunting, as in fact carried on, is compatible with the measures resulting from (not merely the principles set out in) Article 2 - - i n other words, that national measures and permitted hunting pressures are consistent with each other throughout the Community. Article 2 is summarised above in this paper: as mentioned, it gives scientific needs priority over hunting. The same principles apply to falconry, i.e. populations of birds of prey must be safeguarded in accordance with these principles. Quarry species are not to be hunted during the rearing season or, in particular in the case of migratory quarry species, during their reproduction period or "during their return to their breeding grounds'. This phrase clearly prohibits hunting of birds

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on spring migration even if they have wintered in the Member State through which they are migrating. Since a large proportion of the permissible quarry species are migratory, this represents a very important restriction on the freedom of Member States to permit hunting in spring, a particularly undesirable feature of some national laws. Together with the prohibition on the use of nets and other nonselective or large-scale methods of capture and killing, these clauses of the directive provide an important degree of protection for quarry and other species, even though the directive does not otherwise regulate open seasons or hunting methods. In view of the general provisions about hunting pressure, continued hunting of the rare or endangered species listed in Annex I can hardly be defended in future. The directive prohibits the sale, transport for sale, and keeping and offering for sale, dead or alive, of birds and any 'readily recognisable parts or derivatives' of birds (Article 6. The phrase quoted comes from Article 1 of the Washington Convention on international trade in endangered species). There is an exception to this in the case of a number of quarry species listed in Annex III, provided in all cases that the birds in question have been legally killed or captured or otherwise legally acquired. Member States may not prohibit the sale or importation (though they may regulate them) of some of these species. For the others, Member States may permit their sale, but if they wish to do so they must first consult the Commission, whose opposition to the proposed national measure, if the Commission opposes it, must be made public. As a result of the controversy surrounding the possible ill-effects of trade in certain species also listed in Annex III, the Commission has had studies made on the status of the species in question and of the effects of trade on their status. A report on these problems was presented by the end of 1980, before the national laws had to be brought into line with the directive. There are exceptions to the Articles on general protection (Article 5), on hunting (Article 7), on killing and capture methods (Article 8) and, rather curiously, on trade (Article 6). These exceptions are permitted only "where there is no other satisfactory solution'. Member States need not consult the Commission before adopting these derogations, but must report annually to the Commission on the implementation of the derogation Article (Article 9). Like all derogations, this Article must be strictly and narrowly construed. Derogations are permitted only in the interests of public health and safety, air safety (i.e. aeroplane safety), to prevent serious damage to crops, livestock, forests, fisheries or water, for the protection of flora and fauna. Derogations are also allowed for research, teaching, re-population and re-introduction (and breeding for any of these four purposes) and there is an extremely guarded reference to aviculture: States may permit "under strictly supervised conditions and on a selective basis, the capture, keeping or other judicious use of certain birds in small numbers.' For these latter derogations the requirement that there should be no other satisfactory solution means in effect that they may be used only insofar as breeding from existing captive stocks is insufficient for real needs. The clause on aviculture applies to captive breeding of birds of prey.

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Derogations, even for the purposes permitted, are allowed only if certain requirements are fulfilled. The derogations must say what species are to be caught or killed, the methods authorised, the circumstances and "conditions of risk' under which the derogations may be granted, the controls which will be carried out (some controls are therefore obligatory), and the national authority responsible. The authority must say when the circumstances permitting capture or killing exist, what methods may be used, within what limits and by whom. The Commission is responsible for ensuring that at all times the results of these derogations are compatible with the directive. Appropriate steps to ensure this might involve requiring Member States to end or modify derogations which they had given or proposed to give. National legislation based, like the directive, on the general principle that all bird species are protected frequently includes a list of species which, because of their excessive numbers or otherwise, are not subject, or are not fully subject, to protection. The directive contains no such list, and nowhere indicates the species to which it was intended that the derogations should primarily apply. The directive thus provides flexibility, and therefore requires supervision to ensure that it is not used in such a way that it defeats the aims of the directive or that it allows the introduction of undesirable practices prohibited by the directive. In fact it is difficult to visualise any justification for any derogation from some of the provisions of Articles 5 8 ever being established. For example, the use of bird lime could hardly ever be 'the only satisfactory solution' to any bird problem. The introduction of non-indigenous species is not prohibited by the directive, but Member States are obliged to ensure that any such introduction does not prejudice the local flora and fauna, and in this connection they must consult the Commission. This makes it necessary for Member States to control such introductions: not all Member States do so at present, and some do so on animal health grounds rather than for ecological reasons.

C O O P E R A T I O N OF MEMBER STATES

It is convenient here to summarise the duties of Member States imposed by the directive, of cooperation in carrying out the directive. They have agreed to: (i) (ii)

Implement the directive within two years from April 1979. Send the Commission texts of national laws on bird conservation (Article 18). (iii) They must not lessen the protection given by existing laws (Article 13). (iv) They must give the Commission all relevant information about potential nature reserves for birds (Article 4(3)). (v) Consult the Commission before authorising trade in live or dead birds of certain species (Article 6(3)).

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Give the Commission 'all relevant information on the practical application" of their hunting laws (emphasis supplied (Article 7(4)). This may make bag returns and bag limits necessary, in countries which do not already impose them. (vii) Report to the Commission all derogations allowed (Article 9(3)). (viii) Report on research (Article 10). (ix) Make a general report in 1981 and every three years thereafter on the implementation of the directive (Article 12). This is to lead to a regular composite report by the Commission a progress report on the bird conservation situation in the Community as a whole. (vi)

Changes research Member Changes proposal

in the list of endangered species in Annex I and in the list of scientific topics in Annex V may be made by a committee of representatives of States set up under the directive, acting by weighted majority voting. in the list of quarry species can be made only by the Council, acting on a from the Commission.

GENERAL COMMENTS

As far as birds are concerned, the directive is very comprehensive. Although it refers to species, it allows policies in terms of ecosystems and communities. It combines a considerable degree of flexibility with the essential supervision by the Commission. With the help of scientific and conservation advice from the International Council for Bird Preservation and the International Waterfowl Research Bureau, this should ensure satisfactory implementation. It must be remembered that unlike almost all other international arrangements for bird conservation, violation of the directive by Member States (including substantial failure to enforce implementing national laws) may be brought before the Court of Justice of the European Communities. The directive does not list the areas which are to be protected as nature reserves for birds in accordance with its habitat provisions. However, lists are being prepared and the machinery exists for making concrete the duties of Member States in this respect. The reliance of the Commission on the I C B P and the IWRB seems likely to bring about a fruitful relationship between the three bodies. This reliance has an important precedent in the Commission's reliance for scientific advice in the field of marine fisheries conservation on the International Council for the Exploration of the Sea. It remains for the C o m m u n i t y to ensure as far as is necessary effective habitat protection in the important areas listed by the IWRB and ICBP, and no doubt this will take time. For the first time, the directive provides a legal basis for a single, common, scientific Community-wide policy on bird conservation, ignoring national frontiers which have, or should have, no biological significance. Also for the first time, the

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basis for a European policy on nature reserves for migratory birds, forming a network throughout much of Europe, has been created. Since habitat creation is not only a sine qua non but also the principal means of conservation of most of the most seriously threatened bird species in the Community, and since the Council Resolution requires the areas for birds to be chosen in the light of the need to protect biotopes, flora and fauna as well. this is very important. What is in question is not merely bird sanctuaries, but nature reserves. The directive also creates the basis for planning a Community policy on research on birds. This should facilitate Community censusing, pooling of data from ringing, and coordinated mapping of the movements and distribution of birds throughout the Community. The directive provides the basis for the Community to have an external policy on bird conservation (Stuffmann, 1980). When the Community has adopted measures such as the bird conservation directive to promote the objectives of the Economic Community Treaty, Member States are in general no longer free to undertake international obligations on the subject matter in question outside the Community framework. Already the Community has recommended that Member States should ratify the Washington Convention on Trade in Endangered Species and the Ramsar Convention on Wetlands of International Importancefl In future the Community may need to concern itself with threats outside the Community to birds which breed or winter within the Community. such as drainage or pollution of wetlands in Africa, Asia or northern Europe, with the extensive bird catching which occurs around the Mediterranean, and with desiccation in the Sahel. The Council resolution contemplates that the network of nature reserves should be 'integrated into a larger framework should the need arise'. The European Parliament's resolution on the directive stated that as 'measures to promote bird protection must be realised on a world-wide basis' and urged the Commission to take the necessary steps to ensure that in the near future the Community 'initiates appropriate negotiations with third countries'. Apart from the questions already mentioned, joint action with nonmember countries is needed in connection with birds at sea. The directive does not deal directly with national laws on hunting. The Economic and Social Committee hoped that the Commission would continue to study hunting and would try to coordinate national laws on, among other things, hunting seasons, methods of hunting, and expertise of hunters. As noted above, the directive has some clauses on hunting seasons and hunting pressure, but not even the statistical basis for a c o m m o n policy on hunting migratory birds now exists. As many quarry species breed outside the Community, Europe is unlikely in the foreseeable future to have d In July 1979 the Commission submitted to the Council a proposal for a decision concerning the conclusion of the Council of Europe Convention on the conservation of European wildlife and natural habitats: O.J.C.E. no. C 210/12, 22.8.79. See the opinion of the Economic and Social Committee on this proposal: O.J.C.E. no. C 53/50, 3.3.80. which expressed the view that 'a number of the Articles of this convention need further clarification" and suggested that a study in depth might be the basis for the revision of the Convention later.

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the kind of m a n a g e m e n t of m i g r a t o r y waterfowl which exists in N o r t h America. But there is still plenty of scope for r a t i o n a l i s i n g the present n a t i o n a l laws, m a n y of which have little scientific basis a n d have features which are hard to justify. The directive is also i m p o r t a n t because all the M e m b e r States in the C o m m u n i t y have recognised that they are j o i n t l y responsible for m i g r a t o r y birds, that they have a serious interest in one a n o t h e r ' s h u n t i n g practices, bird c o n s e r v a t i o n laws, and habitat protection. States at one end of a m i g r a t i o n route m a y justifiably c o m p l a i n a b o u t the behaviour or inaction of the State at the other end, or at islands or straits where migrants concentrate. C o m p a r e d with most i n t e r n a t i o n a l agreements for bird c o n s e r v a t i o n (the situation in N o r t h America is n o t c o m p a r a b l e ) , the directive appears very satisfactory, a l t h o u g h like all n a t u r e c o n s e r v a t i o n measures everything d e p e n d s on how it is implemented. N a t i o n a l a n d i n t e r n a t i o n a l bird c o n s e r v a t i o n bodies will be observing carefully how effectively the directive is enforced, especially in countries where h u n t i n g laws are not n o r m a l l y believed to be widely observed. States have a legal obligation to enforce it, as well as to enact it. It can be made more concrete. The EEC C o m m i s s i o n will follow a n d enforce its i m p l e m e n t a t i o n , a n d it is hoped that funds will be available. The most i m p o r t a n t thing now lacking is a E u r o p e a n E n v i r o n m e n t F u n d with power to finance the purchase of n a t u r e reserves for birds. The C o m m i s s i o n , acting on scientific advice, can act as a m a n a g e m e n t a u t h o r i t y , a n d can arrange for the C o m m u n i t y to act as a unit in bird c o n s e r v a t i o n matters.

REFERENCES CRAMP, S. (1977). Bird conservation in Europe. London, HMSO. DIAMOND,J. M. (1975). The island dilemma: lessons of modern biogeographic studies for the design of nature reserves. Biol, Conserv., 7, 129-46. IWRB (1980). Conference on the Conservation oJ Wetlands of International Importance especially as waterJowl habitat, Cagliari, Italy, 24-29 November 1980. Slimbridge, IWRB. MERIKALLIO,E. (1958). Finnish birds: their distribution and numbers. Faunafenn,, 5. MOREAU,R. E. (1972). The Palaearctic-AJ?ican bird migration systems. London, New York, Academic Press. O.J.C.E. (1973). C. 112, p. 40, 20 December 1973. O.J.C.E. (1977). Opinion of the Economic and Social Committee, No. C. 152/3, 21 June 1977. O.J.C.E. (O[ficial Journal of the European Communities) (1979). Council directive of 2 April 1979on the conservation of wild birds; O.J.C.E., 25 April 1979, L. 103,p. 1; Council resolution of 2 April 1979 concerning Directive79/409/EEC on the conservation of wild birds, O.J.C.E., 25 April 1979, C 103, p. 6; see resolution of the European Parliament on the proposal for a directive, O.J.C.E., C. 163/28, 11 July 1977, and C. 201/2, 23 August 1977. SMART, M. (1976). Proceedings of the International Conference on Conservation of Wetlands and Waterfowl, Heiligenhafen, December 1974. Annex 11, Recommendations for criteria to be used in identifying wetlands of international importance. Slimbridge, IWRB.

SrUFFMANN,C. (1980). The plans of the Commission in relation to the Convention on International Trade in Endangered Species. In The application of the Washington Convention in the European Community, ed. by B. Mitchell, 22-8, Brussels, EEC. TEMPLE LANG,J. (1971). New legislation on wildlife conservation. Administration, 19, 363, Dublin Institute of Public Administration.