European Commission v Republic of Malta.
Date: 2018-06-21
47


It should be borne in mind that, according to the case-law of the Court, in order to permit the competent authorities to resort to the derogations laid down in Article 9 of Directive 2009/147 only in a manner which complies with EU law, the national legislative and regulatory framework must be designed in such a way that the application of the derogating provisions set out there is consonant with the principle of legal certainty. Accordingly, the applicable national legislation must specify the criteria for the derogation clearly and precisely and require the authorities responsible for their application to take them into account. In respect of exceptional arrangements, which must be interpreted strictly and impose on the authority taking the decision the burden of proving that those conditions exist for each derogation, the Member States are required to ensure that all action affecting the protected species is authorised only on the basis of decisions containing a clear and sufficient statement of reasons which refers to the reasons, conditions and requirements laid down in Article 9(1) and (2) of that directive (see, to that effect, judgment of 8 June 2006, WWF Italia and Others, C‑60/05, EU:C:2006:378, paragraphs 33 and 34).
50


Those declarations do not contain any reference to the absence of another satisfactory solution. Furthermore, in any event, those declarations do not refer to the technical, legal and scientific reports which, according to the Republic of Malta, had been submitted to the Ornis Committee, nor to the recommendations based on that information, which, according to that Member State, had been made by the Ornis Committee to the Minister and called for the implementation of the derogation at issue given that all the conditions laid down in Article 9(1)(c) of Directive 2009/147, including the absence of another satisfactory solution, had been found to be met.
51


It follows that those declarations do not constitute decisions containing a clear and sufficient statement of reasons concerning the condition of the absence of another satisfactory solution laid down in Article 9 of Directive 2009/147.
62


It is important to note that, in exercising their powers concerning the grant of derogations, in accordance with Article 9 of Directive 2009/147, the authorities of the Member States must take account of various criteria which relate to geographic, climatic, environmental and biological factors and, in particular, to the situation regarding the species’ reproduction and total annual mortality rate owing to natural causes (see, to that effect, judgment of 8 June 2006, WWF Italia and Others, C‑60/05, EU:C:2006:378, paragraph 25).
63


Regarding those criteria, it must be considered that, on the basis of current scientific knowledge, ‘small numbers’, within the meaning of Article 9(1)(c) of Directive 2009/147, should be understood as any sample of less than 1% of the total annual mortality of the population in question (average value) for those species which are not to be hunted and a sample in the order of 1% for those species which may be hunted, and ‘population in question’ is to be understood, with regard to migratory species, as the population of those regions from which come the main contingents passing through the region to which the derogation applies during its period of application (see, to that effect, judgment of 11 November 2010, Commission v Italy, C‑164/09, not published, EU:C:2010:672, paragraph 35).
64


The Court pointed out in that regard that those quantities are based on the work of the ORNIS Committee for the Adaptation to Technical and Scientific Progress under Directive 2009/147, instituted under Article 16 of the latter and consisting of representatives of the Member States (see, to that effect, judgment of 8 June 2006, WWF Italia and Others, C‑60/05, EU:C:2006:378, paragraph 26).
65


According to the Court’s case-law, although the percentages referred to above are not legally binding, they can nonetheless constitute, by reason of the scientific value of the work of the ORNIS Committee and the absence of any element of scientific proof to the contrary, a basis for assessing whether a derogation granted under Article 9(1)(c) of Directive 2009/147 complies with that provision (see, to that effect, judgment of 8 June 2006, WWF Italia and Others, C‑60/05, EU:C:2006:378, paragraph 27).
66


The ‘small numbers’ requirement cannot be met if the trapping of birds authorised by way of derogation does not ensure the maintenance of the population of the species concerned at a satisfactory level (see, to that effect, judgment of 16 October 2003, Ligue pour la protection des oiseaux and Others, C‑182/02, EU:C:2003:558, paragraph 17).
82


It is apparent from the Court’s case-law that, where the condition that the trapping of protected species must concern only certain birds in small numbers is not met, the exploitation of birds by trapping for recreational purposes cannot, in any event, be considered judicious within the meaning of Article 9(1)(c) of Directive 2009/147 (see, to that effect, judgments of 16 October 2003, Ligue pour la protection des oiseaux and Others, C‑182/02, EU:C:2003:558, paragraph 17, and of 8 June 2006, WWF Italy and Others, C‑60/05, EU:C:2006:378, paragraph 32).
92


As regards, inter alia, the trapping of birds such as that at issue in these proceedings, that activity can be permitted, pursuant to Article 9(1)(c) of Directive 2009/147, only if it is, in particular, carried out under strictly supervised conditions (see, to that effect, judgment of 16 October 2003, Ligue pour la protection des oiseaux and Others, C‑182/02, EU:C:2003:558, paragraph 15).