Looking at 2018 | A fatal blow for bird trapping awaits

Looking at 2018 | The European Court of Justice will finally take a decision on whether to outlaw bird trapping in Malta or not

The practice of trapping birds in Malta goes as far back as the times of the Knights of the Order of St John. Both hunting and trapping loom large in the Maltese psyche: a cultural practice that has in turn become a small lobby that holds influence with political parties, and whose practices can be deleterious enough for the delicate ecological balance on the small island.

Between 2009 and 2013, Malta was officially prevented under the EU’s Birds Directive from trapping the small, migratory birds that pass over the island twice each year. Trapping is outlawed by the Birds Directive, and can only be allowed under very specific criteria, which is why derogating from the law is not easy.

When in 2004 Malta joined the EU, which bans trapping, the Commission gave Malta five years to phase out the trapping practice for seven species of finches. The hunters’ federation (FKNK) was expected to create a captive breeding programme, but this never even started. Malta’s past trapping seasons since 2004 landed various infringement procedures from the European Commission, forcing the government to revise legislation over the years. Although trapping seasons on paper continued to be revised, the situation with enforcement in the field remained bleak, with illegal finch trapping within Natura 2000 sites being one sticking point which triggered the European Commission to issue two formal warnings in 2011 and 2012.

The outlawing of trapping led to mass resentment amongst the hunting and trapping confraternity, which numbers at least 12,000 registered practitioners. Labour reintroduced trapping in 2014, on the back of an electoral pledge to gain hunters’ votes, instantly sparking legal action by the European Commission. The government decision was based on the same directive by applying a derogation, a supervised exemption “on a selective basis for certain birds in small numbers”.

The EC imposes strict limits on the numbers of birds trapped while selecting specific trapping methods and requirements on the judicious use of captured birds. Malta is now having the book thrown at it by being hauled into court. The European Union’s court of justice is now on the cusp of delivering a fatal blow to bird trapping in Malta.

Long before the court action taken by the European Commission, Malta’s own Attorney General had advised the government not to re-open the trapping season because it was illegal. The AG’s advice may not be legally binding on the government – nor should it be – but one still expects a government to have very solid, well-researched reasons to ignore such advice... especially considering the potential repercussions. But 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.

The practice of trapping birds in Malta goes back to the times of the Knights of the Order of St John
The practice of trapping birds in Malta goes back to the times of the Knights of the Order of St John

An opinion from Eleanor Sharpston, Advocate General at the European Court of Justice (ECJ), says the Court should rule that by opening a trapping season for finches, the Maltese government had clearly failed to fulfil its obligations to abide with the Birds Directive.

Sharpston said she is “entirely convinced that the present arrangements do not respect Malta’s obligations under EU law”.

The core of the Advocate General’s opinion is that she has turned down all of Malta’s arguments in relation to those conditions necessary to derogate from the trapping ban, namely: ‘judicious use’; trapping as a ‘tradition’; the argument that there is ‘no other satisfactory solution’; the use of clap-nets as a medium of capture that can be derogated; and the fact that these types of nets are a method of capture that is both large-scale and non-selective.

An opinion from Eleanor Sharpston, ECJ Advocate General, says the Court should rule that by opening a trapping season for finches, the Maltese government had clearly failed to fulfil its obligations to abide with the Birds Directive

The Advocate General also questioned the capabilities of enforcement, and expressed serious doubts as to the credibility of the methodology used by Malta, and expressed strong 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”.

The recommendations by Advocate General Sharpston, now to be considered by the Court of Justice of the European Union, could spell another step towards the end of finch trapping in Malta.

Malta could well be the sacrificial lamb used to send a message to EU member states to take unilateral bird protection action before the Commission gets involved. Similar trapping measures are used in Austria, but Austrians do not need to apply a derogation because UNESCO has classified Austrian live-finch trapping an Intangible Cultural Asset.

The strength of the Maltese lobby is perhaps exemplified when it successfully repelled an attempt to outlaw hunting in spring in a referendum in 2015 that it won by a whisker. Its polished campaign enabled it to communicate successfully enough with a population which, although intolerant of hunting breaches and similar environmental crimes, could not agree to outlawing a practice that is enjoyed by a not-insignificant part of the population. The difference in votes was minimal, but enough to keep the status quo – a position which also benefited the party in government and the Opposition, which do not like alienating influential voters.

What is sure is that, once the European Court of Justice outlaws finch trapping in Malta, the political parties may be exonerated from having to pander to this part of the lobby. Actions for failure to “obey” before the ECJ include fines applicable daily until compliant. With an external authority like the EU Court bringing the full weight of the law to bear on this practice, challenging such a definite order might be too cumbersome for any government to defy.

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