54Although it is true that the criterion of small numbers as defined by the ORNIS committee is not legally binding, in this instance it can, by reason of the acknowledged scientific value of that committee's opinions and the failure to adduce any scientific evidence to the contrary, be used by the Court as a basis of reference for assessing whether the derogation granted by the defendant Member State under Article 9(1 )(c) of the Directive fulfils the condition that the capture of the birds in question must be carried out in small numbers (see, inter alia, Case C-79/03 Commission v Spain [2004] ECR I-11619, paragraph 41).
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