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61997J0067 European Court reports 1998 Page I-08033 7 aim of protecting biological diversity, such aim being recognised, inter alia, by Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7) and by the Convention on Biological Diversity signed at Rio de Janeiro on 5 June 1992, approved on behalf of the European Community by Council Decision 93/626/EEC of 25 October 1993 (OJ 1993 L 309, p. 1; hereinafter `the Rio Convention'). The Danish Government goes on to explain that the subspecies Apis mellifera mellifera (Læsø brown bee) is disappearing and can be preserved only on the island of Læsø, so that the measure adopted is necessary to prevent the disappearance of the species and is proportionate to the aim pursued. Moreover, the Decision does not affect the possibility of carrying on bee-keeping on the island but merely regulates the species of bee which may be used. 26 The Danish Government concludes by referring to numerous scientific studies establishing the particular nature of that subspecies of bee in relation to others. 27 As its main argument, the Norwegian Government submits that the Danish legislation is justified on environmental protection grounds in accordance with Article 30 of the Treaty and the judgment in Case 120/78 REWE-Zentral v Bundesmonopolverwaltung für Branntwein [1979] ECR 649 (`Cassis de Dijon'), paragraph 8. 28 In the alternative, like the Italian Government and the Commission, it considers that the preservation of a rare and threatened species falls within the protection of the health and life of animals referred to in Article 36 of the Treaty. 29 In the Norwegian Government's submission, the establishment of pure breeding areas is the only means of preserving the Læsø brown bee. 30 The Commission maintains that the same ground of justification should be upheld if the species were not rare and threatened, but it was desirable on scientific grounds to breed a pure strain. 31 On the question of the existence of a disappearing subspecies Apis mellifera mellifera (Læsø brown bee), the Commission considers that this is an evidential matter which is therefore one for the national court to determine. It maintains that the prohibition should not extend to the keeping of brown bees of the species Apis mellifera mellifera from other Member States or from non-member countries in the absence of a valid reason to justify such a restriction, and points out that such a prohibition must not constitute a means of arbitrary discrimination or be aimed at protecting certain occupational interests. 32 The Italian Government states that there are several subspecies of Apis mellifera mellifera, identifiable as strains and within the latter as ecotypes, representing the result of a natural process of adaptation to environmental conditions and various territories. 33 On this question, the Court considers that measures to preserve an indigenous animal population with distinct characteristics contribute to the maintenance of biodiversity by ensuring the survival of the population concerned. By so doing, they are aimed at protecting the life of those animals and are capable of being justified under Article 36 of the Treaty. 34 From the point of view of such conservation of biodiversity, it is immaterial whether the object of protection is a separate subspecies, a distinct strain within any given species or merely a local colony, so long as the populations in question have characteristics distinguishing them from others and are therefore judged worthy of protection either to shelter them from a risk of extinction that is more or less imminent, or, even in the absence of such risk, on account of a scientific or other interest in preserving the pure population at the location concerned. 35 It does, however, have to be determined whether the national legislation was necessary and proportionate in relation to its aim of protection, or whether it would have been possible to achieve the same © An extract from a JUSTIS database 60
61997J0067 European Court reports 1998 Page I-08033 8 result by less stringent measures (Case 124/81 Commission v United Kingdom [1983] ECR 203, paragraph 16). 36 Conservation of biodiversity through the establishment of areas in which a population enjoys special protection, which is a method recognised in the Rio Convention, especially Article 8a thereof, is already put into practice in Community law [in particular, by means of the special protection areas provided for in Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1), or the special conservation areas provided for in Directive 92/43]. 37 As for the threat of the disappearance of the Læsø brown bee, it is undoubtedly genuine in the event of mating with golden bees by reason of the recessive nature of the genes of the brown bee. The establishment by the national legislation of a protection area within which the keeping of bees other than Læsø brown bees is prohibited, for the purpose of ensuring the survival of the latter, therefore constitutes an appropriate measure in relation to the aim pursued. 38 The answer to be given must therefore be that a national legislative measure prohibiting the keeping on an island such as Læsø of any species of bee other than the subspecies Apis mellifera mellifera (Læsø brown bee) must be regarded as justified, under Article 36 of the Treaty, on the ground of the protection of the health and life of animals. DOCNUM 61997J0067 AUTHOR Court of Justice of the European Communities FORM Judgment TREATY European Economic Community TYPDOC 6 ; CJUS ; cases ; 1997 ; J ; judgment PUBREF European Court reports 1998 Page I-08033 DOC 1998/12/03 LODGED 1997/02/17 JURCIT 61974J0008-N05 : N 18 31979L0409 : N 36 61981J0124-N16 : N 35 61990J0001-N24 : N 20 31991L0174-A01 : N 3 10 31991L0174-A02 : N 1 4 9 31991L0174-A02L1 : N 10 31991L0174-A02L2 : N 12 31991L0174-A06 : N 5 11 31991L0174 : N 9 61991J0267 : N 21 61991J0277-N37 : N 20 © An extract from a JUSTIS database 61
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