Species Protection under Birds Directive
Article 9 of the Birds Directive: Derogations
Article 9:
- 1.
Member States may derogate from the provisions of Articles 5 to 8, where there is no other satisfactory solution, for the following reasons:
(a) — in the interests of public health and safety,
— in the interests of air safety,
— to prevent serious damage to crops, livestock, forests, fisheries and water,
— for the protection of flora and fauna;
(b) for the purposes of research and teaching, of re-population, of re-introduction and for the breeding necessary for these purposes;
(c) to permit, under strictly supervised conditions and on a selective basis, the capture, keeping or other judicious use of certain birds in small numbers. - 2.
The derogations referred to in paragraph 1 must specify:
(a) the species which are subject to the derogations;
(b) the means, arrangements or methods authorised for capture or killing;
(c) the conditions of risk and the circumstances of time and place under which such derogations may be granted;
(d) the authority empowered to declare that the required conditions obtain and to decide what means, arrangements or methods may be used, within what limits and by whom;
(e) the controls which will be carried out. - 3. Each year the Member States shall send a report to the Commission on the implementation of paragraphs 1 and 2.
- 4. On the basis of the information available to it, and in particular the information communicated to it pursuant to paragraph 3, the Commission shall at all times ensure that the consequences of the derogations referred to in paragraph 1 are not incompatible with this Directive. It shall take appropriate steps to this end.
Article 9 provides the possibility for derogating from the general protection rules and the provisions on hunting and trading.
However, there are three conditions which need to be fulfilled: 
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1. The Member State must restrict the derogation to cases where there is no other satisfactory solution, Article 9 (1);
- 2. The derogation must be based on at least one of the reasons exhaustively listed in Article 9 (1) (a), (b) and (c), such as the interests of public health and safety; and
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3. The derogations referred to in paragraph 1 must comply with the precise formal conditions set out in Article 9 (2), in order to ensure that the derogations are kept to what is strictly necessary and to enable control by the Commission.
For example: the derogation must specify the species which are subject to derogation, the methods authorised for killing, and the controls which will be carried out.
Indicatively, in one case against the Netherlands , the Court paid particular attention to the transposition of the derogations into national law. The Court held that the elements of Article 9 have to be transposed completely, clearly and unequivocally into national law , in order to guarantee that the derogations are applied in a strictly controlled and selective manner. Only if the derogations of Article 9 are applied in a precise and specific manner can they meet clearly defined conditions and specific situations.