Trapped by our own trapping policy

The ECJ’s opinion validated much of the criticism already levelled at Malta, both locally and internationally, over its stubbornness in pursuing a trapping policy that clearly defied European law

Cartoon by Mikiel Galea
Cartoon by Mikiel Galea

On Wednesday, the European Court of Justice (ECJ) delivered an opinion which spells out the full implications of Malta’s insistence on disregarding the EU’s wildlife protection laws.

Eleanor Sharpston, Advocate General at the ECJ, stated that by opening a trapping season for finches – after trapping was supposed to have been phased out in 2009 – the Maltese government had clearly failed to fulfil its obligations to abide by the Wild Birds Directive.

The Advocate General rejected all the arguments raised by Malta in relation to the necessary conditions to derogate from the trapping ban. These include ‘judicious use’; that trapping is a local ‘tradition’; and the argument that there is ‘no other satisfactory solution’; among others.

Sharpston also expressed serious doubts that Malta can demonstrate that the populations of the seven species of finch can be maintained at a satisfactory level. To the contrary, she stated that it may even be that there is some risk that the use of clap nets by 4,000 licence holders, over a trapping season of 73 days, may potentially be “capable of causing the local disappearance of a species”.

In brief, the ECJ’s opinion validated much of the criticism already levelled at Malta, both locally and internationally, over its stubbornness in pursuing a trapping policy that clearly defied European law. Admittedly, this is not the last word in the ECJ case against Malta; but the Advocate General’s opinion is likely to prove influential on a final verdict that is expected in the coming months.

This suggests that the government, as predicted, is on course to lose its case for the continuation of finch trapping in Malta. But the ECJ’s opinion also reveals just how determined the government was to forge ahead with a case it knew it couldn’t win.

Sharpston observes that “on 16 June, 2014, the Commission sent an EU Pilot request to Malta summarising its position. The Commission expressed the view that the intended derogation did not satisfy the conditions in Article 9 of the Wild Birds Directive. On 15 July, 2014, Malta nevertheless adopted Legal Notices 250 and 253 of 2014 authorising the capture of finches...”

In so doing, Malta precipitated highly unnecessary infringement procedures that can only translate into more taxpayer money being squandered to defend the indefensible. On top of legal costs already incurred in the course of the ECJ proceedings themselves, a guilty verdict would also compel Malta to reimburse the Commission for its own expenses. At this point, we must (once again) question the line of reasoning that led us to this impasse.

One does not need hindsight to draw certain conclusions. It will be noted, for instance, that long before the ECJ’s opinion this week, Malta’s own Attorney General had advised the government not to adopt the abovementioned Legal Notices because they were illegal according to the European Birds Directive. The local AG’s advice may not be legally binding on the government – nor should it be – but one nonetheless expects a government to have very solid, well-researched reasons to ignore such advice... especially considering the potential repercussions.

Yet the Muscat administration has never properly justified its determination to fight this battle, for anything other than its own purely political interests. When parliamentary secretary Roderick Galdes first announced his government’s intention to press for this derogation, he spoke in terms of ‘loopholes’ (or ‘cracks’) in the system that would permit Malta to circumvent European law. At no point did he quote any scientific facts or research to justify the re-opening of a trapping season that had been closed for almost five years.

Herein lies the problem: ‘re-opening the finch trapping season’ was always viewed as an end in itself... independently of such questions as whether it should be re-opened, and at what cost. The government was motivated by its pre-electoral pledges to the trapping community... while ignoring the possible consequences of its inevitable future inability to deliver.

Aside from the aforementioned cost in terms of public expense – which is arguably the least of concerns – there are other more important considerations.

The first and most crucial concerns the long-term environmental impact of our current, untenable policies. Finch trapping is not the only example of a government policy that proves ruinous for its short-sightedness and ecological insensitivity. Nor, it must be said, has the present government been the only offender in this regard.

Our entire approach to environmental issues has, unfortunately, followed much the same pattern. In a reckless effort to outbid competing parties, both Nationalist and Labour governments have whittled away at the structures and institutions that supposedly exist to protect the environment.

In the case of trapping, it was the Wild Birds Regulation Unit – which supposedly regulates the conservation of wild birds – that recommended re-opening the season to the Ornis Committee, while the Attorney General argued against. In other areas, the same function might be fulfilled by the Planning or Resources Authority.

There is a limit to how far any government can wilfully ignore the consequences of its actions, in order to please a local lobby group. One would have hoped we would eventually realise this on our own... rather than have that realisation forced upon us by the European Court.

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