The European Court of Justice delivered judgement in a case brought by the Commission against Malta for failure to fulfil its obligations under Council Directive 79/409/EEC for the hunting of quails (Coturnix coturnix) and turtle doves (Streptopelia turtur) during the spring migration.

The Court considered that opening a spring hunting season, during which those two species are returning to their rearing grounds, which results in a mortality rate three times higher (around 15,000 birds killed) for quails and eight times higher (around 32,000 birds killed) for turtle doves than for the autumn hunting season, does not constitute an adequate solution that is strictly proportionate to the Directive’s objective of conservation of the species. In those circumstances, the Court has ruled that, even though only a negligible number of the two species at issue are present in autumn and for a very limited period, and since hunting is not impossible in autumn, by authorising the opening of the spring hunting season for quails and turtle doves for several weeks each year, from 2004 to 2007, Malta has failed to comply with the conditions for a derogation and, accordingly, has failed to fulfil its obligations under the Directive.

The Court also found however that, although the two species at issue are in fact present in autumn in Malta, during the years in question hunters were able to capture only a negligible number of birds. Moreover, during that season, only a restricted part of the territory of Malta is visited by those birds. Finally, the population of the two species of bird hunted is not below a satisfactory level. It is apparent, in particular, from the International Union for the Conservation Nature Red List of Threatened Species that the species in question are listed in the ‘least concern’ category.

In its judgement, the Court conceded Malta’s arguments that, having regard to Malta’s specific circumstances, the autumn hunting season cannot be considered as a satisfactory solution.

Nevertheless, this finding, far from opening up, without limit, the possibility of authorising hunting in spring, does so only so far as it is strictly necessary and provided that the other objectives pursued by the Directive, in particular protection of the population of the species concerned, are not jeopardised.

Whereas the Court has made it clear that the way the derogation was applied in Malta was not in line with EU law, unlike in the case of Commission v Finland of 15 December 2005 (Case C-344/03) where autumn hunting was declared to be an acceptable alternative to spring hunting, in today’s judgement the Court left space for a proportionate use of the derogation for spring hunting in Malta.

It should be noted that in the past few years the Government had introduced a number of restrictive measures on hunting in spring in an effort to bring the practice within the spirit of the Birds Directive. However, these limited measures were always met with opposition from hunters’ organisations. The Government’s legal advisors will examine the Court judgement to ascertain whether there is any possibility for very limited hunting under strict controls to be allowed in spring in Malta.

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