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).
The derogations in Art. 16 have been the subject of a number of legal cases over the years, and the case law of the CJEU makes it clear that any derogations should be interpreted strictly and narrowly. 
As a consequence, the exceptions cannot serve as general measures and a derogation decision must define the objectives relied upon in support of a derogation in a clear and precise manner and with supporting evidence. It must be applied appropriately in order to deal with precise requirements and specific situations.
The favourable conservation status of those populations in their natural range is a necessary precondition in order for the derogations for which Article 16(1) provides to be granted. A derogation under Article 16(1) of the Habitats Directive must therefore be based on criteria defined in such a manner as to ensure the long-term preservation of the dynamics and social stability of the species in question. In principle, it is possible that the killing of a limited number of specimens may have no effect on the objective envisaged in Article 16(1). Such a derogation would therefore be neutral for the species concerned. However, it must be noted that the grant of such derogations by way of exception must be assessed also in the light of the precautionary principle.
As regards the condition relating to the limited and specified number of certain specimens of the species to be taken or kept, it must be noted that that number will depend, in each case, on the population level of the species, its conservation status and its biological characteristics. That number must also be determined on the basis of rigorous scientific data which relate to geographic, climatic, environmental and biological factors as well as those enabling an assessment of the situation regarding the species’ reproduction and total annual mortality rate owing to natural causes.
Furthermore, the Member States must provide a clear and sufficient statement of reasons as to the absence of a satisfactory alternative by means of which the objectives relied upon in support of a derogation could be achieved. That obligation to provide a statement of reasons is not met when the derogation decision does not contain any reference to the absence of any other satisfactory solution or any reference to relevant technical, legal and scientific reports to that effect.
In any event, derogations granted under Article 16(1) must not, taken as a whole, produce effects that are contrary to the objectives pursued by that directive. In Case C-674/17 Luonnonsuojeluyhdistys Tapiola, the CJEU held that the objective of a derogation based on Article 16(1)(e) - taking or keeping of certain specimens in limited numbers - cannot, in principle, be confused with the objectives of the derogations based on Article 16(1)(a) to (d), with the result that the former provision can only serve as a basis for the grant of a derogation in cases where the latter provisions are not relevant. Taking or keeping of certain specimens in limited numbers therefore cannot be allowed in the interests specified Article 16(1)(a) to (d) in case these interests are not serious enough. The condition that derogations under Article 16(1)(e) must be implemented under strictly supervised conditions means, in particular, that those conditions and the manner in which compliance with them is ensured can guarantee that the specimens of the species concerned are taken or kept on a selective basis and in limited numbers. Thus, for each derogation based on that provision, the competent national authority must ensure that the conditions laid down therein are satisfied before that derogation is granted and monitor its subsequent impact. The national legislation must ensure that the lawfulness of the decisions granting derogation permits under that provision and the manner in which those decisions are implemented, including as regards compliance with the accompanying conditions relating to, in particular, places, dates, numbers and types of specimens targeted, are subject to effective control in a timely manner.