Ligue pour la protection des oiseaux and Others v Premier ministre and Ministre de l'Aménagement du territoire et de l'Environnement.
Date: 2003-10-16
9.  It therefore appears that Article 9(1)(c) of the Directive permits authorisation, in compliance with the conditions set out in that provision, of the capture, keeping or other judicious use of certain birds during the periods mentioned in Article 7(4) of the Directive, during which the survival of wild birds is at particular risk.
10.  According to the case-law of the Court, Article 9 of the Directive authorises Member States to derogate from provisions relating, inter alia, to hunting (Case 247/85   Commission   v   Belgium   [1987] ECR 3029, paragraph 7). The Court has also accepted the possibility of derogating from the prohibition on hunting species of birds not listed in Annex II to the Directive, to which Article 7(1) refers, in particular for the reason set out in Article 9(1)(c) of the Directive (Case C-118/94   Associazione Italiana per il WWF and Others   [1996] ECR I-1223, paragraph 21).
11.  It is clear from the foregoing that the hunting of wild birds for recreational purposes during the periods mentioned in Article 7(4) of the Directive may constitute a judicious use authorised by Article 9(1)(c) of that directive, as do the capture and sale of wild birds even outside the hunting season with a view to keeping them for use as live decoys or to using them for recreational purposes in fairs and markets (see Case 262/85   Commission   v   Italy   [1987] ECR 3073, paragraph 38).
14.  A national measure which permits derogating from Article 7(4) of the Directive by virtue of Article 9(1), such as the measure cited in paragraph 5 of this judgment, does not comply with the latter provision if it fails to refer to the fact that such a derogation can be granted only where there is no other satisfactory solution (see, to that effect,   Commission   v   Italy  , cited above, paragraph 39).
15.  Second, as regards hunting in particular, that activity can be permitted pursuant to Article 9(1)(c) of the Directive only if:
─  there is no other satisfactory solution;
─  it is carried out under strictly supervised conditions and on a selective basis;
─  it applies only to certain birds in small numbers.
16.  The first of the conditions set out in the preceding paragraph cannot be considered to have been satisfied when the hunting period under a derogation coincides, without need, with periods in which the Directive aims to provide particular protection (see, to that effect,   Commission   v   Italy  , paragraph 39). There would be no such need if the sole purpose of the derogation authorising hunting were to extend the hunting periods for certain species of birds in territories which they already frequent during the hunting periods fixed in accordance with Article 7 of the Directive.
17.  The third of those conditions cannot be satisfied if a hunting derogation does not ensure the maintenance of the population of the species concerned at a satisfactory level. If that condition is not fulfilled, the use of birds for recreational hunting cannot, in any event, be considered judicious and, accordingly, acceptable for the purposes of the 11th recital in the preamble to the Directive.