Grouse Import Ban (GROUSE)
CASE NUMBER: 31
CASE MNEMONIC: GROUSE
CASE NAME: Grouse Import Ban
A. IDENTIFICATION
1. The Issue
In 1984 Dutch authorities seized a red grouse from a poultry and game
trading company under the authority of a 1936 "Law on Birds" that prohibits
the sale, keeping of, or importation of certain birds. The trading company
claimed that the law was not valid because the bird was killed in the United
Kingdom and not in the Netherlands, and in the United Kingdom the taking of
these birds is legal. The Dutch courts convicted the company but the decision
was overturned on appeal in the European Court of Justice.
2. Description
At issue in the case was the question of whether the 1936 Dutch
prohibition (Vogelwet "Law on Birds" Article 7), relating to the sale, keeping
and importation of certain birds may prohibit keeping red grouse in the
Netherlands that were lawfully shot and killed in the United Kingdom.
The principle of the free movement of goods (Article 36 of the EEC
Treaty) does not preclude import bans or restrictions where justified to
protect animal health and life. However, this principle may contradict other
aspects of EC policy and law, such as:
(i) the purpose of the Article 7 Vogelwet prohibition is to preserve all
wild birds, particularly those in Europe, however, it does not
specifically include the red grouse.
(ii) Article 6 (1) of Council Directive 79/409/EEC (April 2, 1979),
prohibits Member States to sell, transport/keep/offer for sale live or
dead birds found to occur in a wild state within any Member State's
territory. An exception in Article 6(2), however, applies to such birds
that have been legally killed, captured or acquired.
(iii) General EC policy on environmental protection applies to
"Conservation of all species of naturally occurring birds in the
wild state in the European territory of the Member states to which
the Treaty applies. It covers the protection, management and
control of these species and lays down rules for their
exploitation."
On December 21, 1984, Dutch inspectors, pursuant to Vogelwet, requested
Gourmetterie Van den Burg, a poultry and game trader whose registered office
is in The Hague (hereafter GVB), to release to them three red grouse in its
possession. The Dutch inspectors only found and seized one of the three
birds. On November 11, 1986, GVB was convicted by the Kantrontechter
[cantonal court], for the importation and possession of one or more dead red
grouse, a "protected bird" pursuant to Article 1(2) of the Vogelwet.
The district court [Arrondissementsrechtbank] quashed the conviction on
November 25, 1987, fined GVB, and ordered confiscation of the seized red
grouse for violation of Vogelwet's Article 7. The district court reasoned
that the Vogelwet protection of the red grouse was consistent with Articles 30
and 36 of the EEC Treaty because its objective was to protect the wild bird
population in Europe. The court noted Directive 79/409/EEC, which in Article
6(1) prohibits Member States from selling, transporting, keeping, and/or
offering for sale live or dead birds naturally occurring in a wild state in
the European territory of Member States. The court also acknowledged the
exception contained in Article 6(2) that authorizes the aforementioned
activities when such birds have been legally killed, captured, or acquired.
However, the court held that Article 14 of Directive 79/409/EEC was most
applicable and declared that the Vogelwet prohibition, intended to protect the
bird population in Europe, did not violate EEC Treaty Articles 30 and 36.
GVB appealed in cassation, charging the district court with error in not
declaring the Vogelwet contrary to EEC Treaty Articles 30 and 36. GVB claimed
that the Dutch legislators did not intend the Vogelwet to apply to red grouse
from the United Kingdom, where the birds are not endangered and shooting them
for sport is entirely legal. The Hoge Raad found such application of the
Vogelwet prohibition to have the effect of a quantitative import restriction.
Therefore, the Hoge Raad stayed the proceedings and referred to the European
Court of Justice the questions as stated in section A above, which were
received on May 16, 1989.
The European Court of Justice (Sixth Chamber) resolved the dispute on
May 23, 1990, as follows: an import and marketing prohibition is unlawful when
the bird species does not occur in the prohibiting Member State's territory
(the Netherlands) but does occur in another Member State's territory (the
United Kingdom) where it may be lawfully hunted pursuant to (a) national
legislation and Council Directive 79/409/EEC; and (b) the Directive does not
characterize the species as migratory or endangered. The Court emphasized the
requirements of necessity and proportionality of the Dutch legislation vis-a-
vis the problem of protecting the red grouse population in Europe.
The Court stated that necessity included the existence of a casual
connection between the measure adopted and the objective and the absence of an
alternative less restrictive of the free movement of goods. It also stated
that a proportional relationship must exist between the measure adopted and
the objective. The Court noted the likelihood of a causal connection between
the means (Dutch import prohibition on dead red grouse) and the objective (the
increase of the bird's population in Europe). It reasoned that an import ban
could reduce demand for the birds and thereby reduce its killing and increase
its population in the United Kingdom.
The Court, however, found the Dutch measure too restrictive of the free
movement of goods. It emphasized that import bans violate the fundamental
treaty principle of free movement of goods and that exigent circumstances must
exist for a Member State to justify such measures. It found no such
circumstances present in this case. The Court proceeded to cite numerous less
restrictive means available to the Dutch including, inter alia, proposing the
inclusion of the red grouse within Directive 79/490/EEC's list of endangered
species.
Finally, the Court also held that the Dutch import prohibition
restricted intra-Community trade and that its effect on the red grouse
population in Europe would be small. The Court therefore concluded that the
means were disproportionate considering the unlikelihood of success. Adding
that the red grouse is not currently an endangered species, it characterized
measures to protect that bird as not a priority under Community law.
3. Related Cases
Keywords/ (1): FOOD/SIC
Clusters (2): EURCOM/Forum
(3): TEMP/Bio-Geographic Area
4. Author: Jennifer Fedor
B. LEGAL Filters
5. Discourse and Status: DISagreement and COMPlete
The dispute was resolved by the European Court of Justice (Sixth
Chamber) on May 23, 1990.
6. Forum and Scope: EURCOM and REGION
7. Decision Breadth: 12 (EURCOM members)
The parties represented in this case include the Government of the
Netherlands, a Netherlands game and poultry trader, and the European
Community.
8. Legal Standing: TREATY
C. GEOGRAPHIC Filters
9. Geographic Locations
a. Geographic Domain : EUROPE
b. Geographic Site : Western Europe [WEUR]
c. Geographic Impact : NETHerlands
10. Sub-National Factors: NO
11. Type of Habitat: TEMPerate
D. TRADE Filters
12. Type of Measure: Import Ban [IMBAN]
The decision in this case may be characterized as finding a Member
State's import ban of certain goods unlawful because it violates existing
Community Law (see ITALYBAG and DUTCHWD cases).
13. Direct vs. Indirect Impacts: INDIRect
The impact is indirect because it does not distinguish between treatment
of the red grouse in domestic versus international trade.
14. Relation of Measure to Environmental Impact
a. Directly Related to Product : YES BIRD
b. Indirectly Related to Product : NO
c. Not Related to Product : NO
d. Related to Process : YES Species Loss Air
[SPLA]
15. Trade Product Identification: BIRD
Birds includes the carcasses of dead animals. The act protects all
birds except tame pigeons and swans, and other specifically noted birds.
Article 1,2 of EC policy states that the measure "shall apply to birds, their
eggs, nests and habitats."
16. Economic Data
There are few economic consequences in this case, except to the sport
hunting industry of the United Kingdom.
17. Impact of Trade Restriction: BAN
18. Industry Sector: FOOD
19. Exporter and Importer: UK and NETHerlands
E. ENVIRONMENT Filters
20. Environmental Problem Type: Species Loss Air (SPLA)
The Commission view was that protecting wildlife elsewhere was as
important as protecting wildlife in one's own country.
21. Name, Type, and Diversity of Species
Name: Red Grouse
Type: Animal/Vertibrate/Bird
Diversity: 76 birds per 10,000 km/sq (UK)
22. Resource Impact and Effect: LOW and PRODuct
The resource depletion impact of the red grouse is low, given that the
animal is not endangered in the United Kingdom. The decision only renders
unlawful the application of one particular Dutch law [Vogelwet Article 7] to
the protection of the red grouse where the red grouse was lawfully killed,
captured or acquired in another's territory.
23. Urgency and Lifespan: HIGH and 3-5 years
The overall bird population in Europe is threatened by both pollution
and land use changes. Perhaps the loss of bird populations is one reason
Europe is a large importer of birds (see BIRDS
and THAIBIRD cases). The case indicates
that the red grouse is not classified as an endangered species everywhere in
the EC, so urgency differs by locale.
24. Substitutes: LIKE products
There are many other types of birds in Europe besides the grouse that
can be hunted. However, one problem is other similar species in Netherlands
and how legal kills can impact their domestic populations. The black grouse
in Netherlands is a "look-alike" species to the red grouse, which leads to
other problems in enforcement.
VI. OTHER Factors
25. Culture: YES
The sportsman's tradition in the UK and the Netherlands has existed for
hundreds of years. The need to kill the grouse for food was not a factor in
the case, but the sporting tradition clearly was. Since it was actually quite
expensive to travel to another country simply to kill an animal, it must evoke
some important meaning via experience or tradition.
26. Trans-Border: NO
27. Rights: NO
28. Relevant Literature
Commission of the European Communities, "Commission Directive of
6 March 1991 Amending Council Directive 79/409 EEC on the
Conservation of Wild Birds". 91/224/EEC (May 8, 1991).
Commission of the European Communities, "Commission Directive
79/409 EEC Council Directive of 2 April, 1979 on the Conservation
of Wild Birds". (April 5, 1979).
European Court of Justice, (Sixth Chamber). Decision of May 23,
1990.
"Re Gourmetterie Van dem Burg BV (Case 169/89), European Court of
Justice, 6th Chamber (May 23, 1990). Lexis/Nexus.
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