Update with reactions from the Government and PN below – The Court of Justice of the European Union has said on Thursday in its judgement that “by adopting a derogation scheme allowing the live capturing of seven species of wild finches, Malta has failed to observe its obligations under EU law.”

In May, the Advocate-General Tamara Capeta’s Opinion was delivered in the case of Commission v Malta concerning the research derogation on seven species of wild finches.

The recommendation was that ”the Court should find that Malta’s derogation allowing live capture of finches breaches the Birds Directive of the European Union.” The Court has also declared that Malta should pay all costs.

The Ministry for Gozo and Planning said at the time that ‘the Government takes note of this Opinion. It is however disappointed with the Advocate-General’s conclusions.” However, it said it ”remains committed to the cause.”

The European Commission initiated the present infringement procedure against Malta alleging that it has failed to fulfil the conditions required for the research derogation under Article 9(1)(b) of the Birds Directive, and also failed to demonstrate the absence of another satisfactory solution.

The Court said that it finds that by adopting a derogation allowing to capture live individuals of 7 species of wild finches, the Republic of Malta has “failed to fulfil its obligations under Directive 2009/147 on the conservation of wild birds.”

Judgement in Case 23/23 | Commission v Malta (Derogations for research purposes) is shown below:

“The Court finds that the by adopting a derogation allowing the live capture of individuals of 7 species of wild finches 5, the Republic of Malta has failed to fulfil its obligations under Articles 5, 8(1) 9(1) of Directive 2009/147 on the conservation of wild birds.

The Finches Project does not establish a genuine research purpose and hence cannot be considered as being justified under the derogation of Article 9(1)(b) of the Directive. Considerations of the Court

Admissibility:

In line with AG Capeta’s opinion finding that the mere change of legislation cannot be an automatic reason for the inadmissibility of an action before the Court, the action is admissible.

Merits:

The Republic of Malta has failed to establish that its derogating regime pursues a research objective, because that regime is:

a) not based on scientific methods,

b) gives rise to defective application,

c) pursues an objective unconnected with wild finches conservation and, in any event,

d) is inappropriate for attaining the declared objective.

The Republic of Malta has also failed to state reasons for the absence of any other satisfactory solution, and, has failed to demonstrate the absence of any other satisfactory solution.

The fact that the Republic of Malta has amended its legal framework and introduced new procedures, new bodies and new participants in the research derogation, and strengthened the enforcement mechanisms, is not such as to demonstrate that the regulatory framework adopted in 2021 constitutes a new regime in relation to the subject-matter of the present action.

Secondly, the contested measure are clearly defined in the application: the Commission’s application clearly states that the contested derogation regime for research includes the 2020 framework rules, the 2020 declaration, the 2021 framework rules and the 2021 and 2022 declarations, as well as any future measures of the same type constituting the same conduct.

The declarations of 2020, 2021 and 2022 authorising the trapping of finches of the species concerned during the ‘research periods’ of 2020, 2021 and 2022 do not comply with Article 9 of Directive 2009/147.

It is true that the Maltese legislation sets out the criteria for derogation in a clear and precise manner and requires the authorities responsible for their application to take them into account.

Indeed, regulation 9 of the Rules on the Conservation of Wild Birds essentially transposes Article 9 of Directive 2009/147, while regulation 4 of the Framework Rules 2020 and regulation 8 of the Framework Rules 2021 require the Minister to verify, when opening a search period, that there is no other satisfactory solution.

However, it appears that the declarations of 2020, 2021 and 2022 authorising the trapping of finches of the species concerned during the ‘research periods’ of 2020, 2021 and 2022 do not contain any precise and adequate reasoning as to why there is no such solution and do not even mention other scientific research methods currently used in the ornithological field, either to confirm or to reject them.”

Government reaction

In a statement, the Government of Malta acknowledged the Court’s ruling, which declared that one element of the research derogation applied by Malta in the years 2020, 2021, and 2022 was not in compliance with the Birds Directive.

It said that “a detailed analysis of the judgment is currently underway to assess the implications and the way forward.”

The Government said that it “remains resolute in defending the lawful practices of hunters and trappers and will continue to engage with all relevant stakeholders to ensure their concerns are appropriately addressed, in full respect of EU law and this judgment.”

Minister for Gozo and Planning Clint Camilleri was present at the Court of Justice in Luxembourg to personally witness the delivery of the ruling., the Government said.

PN statement

The Nationalist Party said that it notes the ruling of the European Court of Justice, which found the Maltese Government guilty of failing to meet its obligations under EU laws when it adopted a derogation allowing the trapping of songbirds for scientific purposes.

In its decision, the European Court stated that this goes against the European Birds Directive.

“It is worth recalling that this is the second similar ruling after Malta was already found guilty in 2018 regarding bird trapping and was ordered to completely stop this practice,” the PN said.

Subsequently, the PN said that “the Government opened a season under the pretext of research, and the European Commission immediately understood that this was merely a smokescreen, reopening Infringement Proceedings against the Maltese Government.”

The PN insisted that “today’s decision shows that the Maltese Government falsely raised hunters’ hopes that they could continue bird trapping.”

Even worse, it said, “the Government ignored warning after warning from the EU, leading to Malta being taken to Court and now having to face the consequences, losing the case with all related costs.”

The PN once again called for “serious dialogue with the European Commission and bird trappers to find a way for bird trapping to be carried out sustainably and through a serious plan that ensures the trappers’ interests are protected while avoiding any breach of the EU Birds Directive.”

Instead, the PN “we now have a situation where thousands of trappers in our country cannot practise their hobby due to the Government’s wrong decisions, which have resulted in the Court once again ruling to stop bird trapping.”

The Partit Nazzjonalista declared that, “as it has always done, it respects every ruling handed down, regardless of its source.”

File photo BirdLife Malta

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