Goldfinch – Photo by Dr. Raju Kasambe
(LUXEMBOURG) – Malta has failed to fulfil its obligations under EU law in its adoption of a derogation regime to allow the trapping of seven species of wild birds, the European Court of Justice ruled on Thursday.
In its ruling, the Court said Malta’s regime does not comply with the strict conditions laid down by the wild birds directive. Under the 2009 EU Directive 2009/147/EC on the conservation of wild birds, EU Member States must establish a general system of protection for several bird species.
However, where there is ‘no other satisfactory solution’ they can derogate from this obligation, to permit, under strictly supervised conditions and on a selective basis, the capture, keeping or other judicious use of certain birds in small numbers.
In 2014 and 2015, Malta adopted several measures which enable it to benefit from the derogation laid down in the Directive. Those measures authorise the capture of seven species of finches by means of traditional nets (‘clap-nets’), subject to certain conditions.
Finch Trapping is illegal across the European Union under the EU Birds Directive. The EU Commission contended that Malta’s derogation failed to meet the conditions of the Directive, leading it to to bring an action at the EU Court against Malta.
In its judgment, the Court ruled, first, that the 2014 and 2015 measures authorising the autumn trapping of finches did not comply with the Directive since they do not contain any reference to the absence of another satisfactory solution.
The Court also concluded that Malta had not complied with the condition of the Directive according to which the permitted derogation must concern only ‘small numbers’ of birds.
In that regard, the Court notes in particular that, according to a 2007 study by the non-governmental organisation BirdLife Malta, trapping in Malta is so intensive that only a handful of each of the common finch species regularly breed on the islands, whereas they breed in high numbers in other areas of the Mediterranean.
Moreover, the Court points out that, even though Malta claims to have taken into account only reference populations from countries with stable or increasing populations, Malta’s selection of those populations has not always been consistent with the stated methodology.
The Court noted that, where the condition of trapping in small numbers was not met, “recreational trapping of birds cannot be considered judicious”. Also that the the condition that only the selective live-capturing of finches can be permitted was not met either.
As the Maltese authorities had notably admitted the existence of ‘by-catch’, the Court pointed out the non-selective nature of the method of capture using nets.
Finally, the Court found that Malta had not adduced evidence that the derogation at issue is used under strictly supervised conditions within the meaning of the Directive. It considered that in the context of Malta, characterised by a very high density of licence holders, namely over 4 000, and of registered trapping stations, namely over 6 400, the fact that a mere 23 per cent of hunters had been subject to individual checks “seems inadequate”.
Furthermore, evidence shows that failure to observe the restrictions relating to authorised catch periods and locations, in particular by trapping inside ‘Natura 2000’ sites, has been rather frequent during the 2014 autumn capturing season.
Consequently, the Court ruled that Malta has failed to fulfil its obligations under the EU Directive.
