Species Protection under Habitats Directive
System of strict protections (Articles 12-16 of the Habitats Directive)
Derogations
Article 16 identifies the conditions under which a Member State can derogate from the strict protection provisions.
- 1.
Provided that there is no satisfactory alternative and the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range, Member States may derogate from the provisions of Articles 12, 13, 14 and 15 (a) and (b):
(a) in the interest of protecting wild fauna and flora and conserving natural habitats;
(b) to prevent serious damage, in particular to crops, livestock, forests, fisheries and water and other types of property;
(c) in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment;
(d) for the purpose of research and education, of repopulating and reintroducing these species and for the breeding operations necessary for these purposes, including the artificial propagation of plants;
(e) to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens of the species listed in Annex IV in limited numbers specified by the competent national authorities. - 2. Member States shall forward to the Commission every two years a report in accordance with the format established by the Committee on the derogations applied under paragraph 1. The Commission shall give its opinion on these derogations within a maximum time limit of 12 months following receipt of the report and shall give an account to the Committee.
- 3.
The reports shall specify:
(a) the species which are subject to the derogations and the reason for the derogation, including the nature of the risk, with, if appropriate, a reference to alternatives rejected and scientific data used;
(b) the means, devices or methods authorized for the capture or killing of animal species and the reasons for their use;
(c) the circumstances of when and where such derogations are granted;
(d) the authority empowered to declare and check that the required conditions obtain and to decide what means, devices or methods may be used, within what limits and by what agencies, and which persons are to carry out the task;
(e) the supervisory measures used and the results obtained.
In contrast to the Birds Directive, the derogations in the Habitats Directive are more extensive. Derogation is allowed where one of the elements laid down in Article 16 (1) (a - e) of the directive apply.
Unlike the derogations allowed in the context of SPAs, the ones allowed for the protection of species are not stated to be applicable mutatis mutandis to the Birds Directive.
Therefore it must be assumed that, within the scope of the Birds Directive, derogation is only possible in relation to the prohibitions on capture and trading (Article 9).
The Member States are obliged to report on these derogations to the European Commission every two years. In this context, according to Article 17 of the Habitats Directive, Member States draw up a report on the progress made with the implementation of the Habitats Directive every six years.
In 2007 the Commission, in co-operation with the Member States, drew up a “Guidance Document on the strict protection of animal species", with the aim of better understanding the previous provisions (Articles 12 and 16).