Update Government’s reaction below – The European Commission is referring Malta to the Court of Justice of the European Union (CJEU) over its decision to allow finch trapping on its territory as of 2014.
The case concerns Malta’s decision to allow the live capture (i.e. trapping) of seven species of wild finches as from 2014. In the EU, the capture and keeping of bird species like finches is generally prohibited.
However, Member States may derogate from the strict protection requirement if there is no other satisfactory solution, and if the derogation is used judiciously, with small numbers and strict supervision.
As these conditions are not met in this case, the Commission sent a letter of formal notice in October 2014, urging Malta to refrain from finch trapping.
Despite this warning, the Commission said that Malta went ahead as planned with the opening of a finch trapping season in 2014. The Commission, therefore, sent a reasoned opinion in May 2015, urging Malta to end the practice.
Malta has replied, contesting the Commission’s analysis. Since Malta has not committed to end finch trapping, the Commission said that it has, therefore, decided to refer Malta to the Court of Justice of the EU.
In Europe, many species of wild birds are in decline, and markedly so in some cases. This decline disturbs the biological balance and is a serious threat to the natural environment.
Directive 2009/147/EC on the conservation of wild birds aims to protect all species of wild birds that occur naturally in the Union. The Directive bans activities that directly threaten birds such as deliberate killing or capture, destruction of nests and removal of eggs, and associated activities such as trading in live or dead birds, with a few exceptions.
It also places great emphasis on the protection of habitats for endangered and migratory species, especially through the establishment of a network of Special Protection Areas (SPAs).
Article 9 of the directive provides limited scope for derogations from the requirement of strict protection where there is no other satisfactory solution, for instance, in the interests of public health and safety or air safety, to prevent serious damage to crops, livestock, forests, fisheries and water, and for the protection of flora and fauna.
Derogations may also be permitted for the purposes of research and teaching, repopulation, reintroduction and for the breeding necessary for these purposes.
Malta was allowed a transitional arrangement in the Accession Treaty to phase out finch trapping, taking into account the time required to establish a captive breeding programme. The transitional arrangement expired in 2008.
The case concerns the live capture of seven species: chaffinch Fringilla coelebs, linnet Carduelis cannabina, goldfinch Carduelis carduelis, greenfinch Carduelis chloris, hawfinch Coccothraustes
Update: Government to defend Malta’s right to apply finch live-capturing derogation in line with EU law.
The Government in a statement this afternoon, referred to European Commission’s decision to refer Malta to the European Court of Justice concerning application of derogation under Article 9(1)(c) of the EU Birds Directive to permit, under strictly supervised conditions, live-capturing of seven species of finches.
“This derogation was subject to extensive discussions during a series of bilateral technical meetings held between representatives of the Maltese authorities and European Commission, as well as subject to written correspondence whereby the Maltese authorities have provided the Commission with the detailed technical, scientific and legal account of Malta’s compliance with the European law.”
The Government said that “despite common understanding reached on some legal aspects of the derogation, the Commission appears to have not taken into consideration the technical and scientific materials provided to it in relation to this derogation, and thus continued to maintain that the derogation is in breach of Articles 5(a) and (e), Article 8(1) and Annex IV, point (a), read in conjunction with Article 9(1), of the EU Birds Directive 2009/147/EC.”.
“Upon considering the recommendations of the Malta Ornis Committee which followed a thorough assessment of the scientific and technical considerations pertaining to the application of this derogation, the Government has ascertained that the application of limited and strictly controlled live-capturing derogation meets all the parameters of Article 9 (1)(c) of the Birds Directive, including the “no other satisfactory solution,” “judicious use,” “small numbers,” “selectivity” and “strict supervision” criteria.”
The Government added that “furthermore it ascertained, through a scientific assessment, that the application of this derogation does not negatively impact the population status of the seven finch species.”
Whilst the Commission is mandated under the Treaty on the Functioning of the European Union to pursue infringement procedures and initiate legal action in circumstances where it believes that a Member State has infringed EU law, the Government is prepared to defend Malta’s right to derogate in the Court of Justice of the European Union, it said.