CE, Sect., 3 décembre 1999, p. 379 Case Association ornithologique et mammalogique de Saône-et-Loire et rassemblement des opposant à la chasse
03 December 1999
Translated by:
Professor John Bell FBA
Professor B. S. Markesinis

Considering that the decision under which the Prime Minister refused to make use of the procedure provided in art. 37, para. 2, of the Constitution so as to amend a text in legislative form which lies within the competence of the regulatory power and has thus the character of an administrative decision capable of being subject of a challenge for judicial review; as thus, contrary to the claim of the National Union of the Departmental Federation of Hunters and the Minister of Territorial Organisation and the Environment, the applications against the implicit decision arising from the silence maintained for four months by the Prime Minister to the request of the Association ornithologique et mammalogique de Saône-et-Loire and the Rassemblement des opposants à la chasse that, provided that the Conseil constitutionnel declares the regulatory character of the provisions of the Law of 15 July 1994 fixing the dates for the closure of hunting for migratory birds, these provisions should be repealed and replaced by new rules falling within the competence of the administrative court;

On the legality of the challenged implicit decisions

Considering that even if, having regard to the requirements inherent in the hierarchy of norms as well as the obligation for national authorities to ensure the application of Community law, it is the duty of the Prime Minister, receiving requests to this effect, to draw the consequences of the fact that, in the light of scientific knowledge, almost the totality of the provisions of the Law of 15 July 1994 fixing the dates of the closure of hunting for migratory birds were incompatible with the objectives of art.7, para., 4 of Directive 79/409/CEE of 2 April 1979, as it had been interpreted by the judgment of the European Court of Justice of 19 January 1994, the Prime Minister possesses a broad discretion in how he does this, especially in determining the date and procedure appropriate to achieve this end; as it does not appear from the file that, at the dates on which they occurred, the implicit decisions arising from the silence kept by the Prime Minister in relation to the requests made to him on 20 July and 1 August 1994 were affected by a manifest error in evaluation;

Considering that it follows from what has been said that the applicant associations are not justified in requesting the annulment of the challenged decisions………


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