EU Court decision that seals fate of bird trapping expected June 21

Malta was obliged to phase-out trapping for the seven species by 2009, but the outlawed practice was reintroduced in 2013 under a new Labour administration

The European Court of Justice is expected to publish its final decision on the lawfulness of trapping seven different species of songbirds during the autumn season on the 21 June.

The decision is widely expected to re-establish the ban on trapping mandated by EU laws, and possibly end a century-old tradition of trapping migratory songbirds flying south to Africa over Malta.

It would also release countless hectares of public and private land from trapping sites, which traditionally consist of clap-nets surrounded by live decoys both in cages and coerced to fly as migrating birds pass over the trapping sites.

Malta was obliged to phase-out trapping for the seven species by 2009, but the outlawed practice was reintroduced in 2013 under a new Labour administration. The move led to infringement procedures against the Maltese government and the eventual court case at the ECJ.

Yesterday the hunting federation in Malta (FKNK) issued a statement saying that it hoped that the ECJ would “decide in its wisdom to end the suffering and tension of thousands of Maltese trappers and their families and ensure equal and unity treatment for all member states”.

Yet the ECJ might find it difficult to bless the opening of a trapping season considering that the seven species that are trapped are considered as songbirds in European Union states and fully protected.  Trapping with clap-nets and decoys is illegal in the EU and no member country is granted a concession in this regard.

Prime Minister Joseph Muscat has stood by the trapping community, aware of the voting niche they occupy and has defended his decision to open up autumn trapping, arguing that the numbers caught are too small to leave an impact on the populations.  His position has emboldened Labour’s electoral standing in Gozo, where in the last election Labour retained control on the traditionally Nationalist-leaning constituency of Gozo.

But the reopening of trapping was never mentioned in the electoral programme of the Labour party and came as a complete surprise to environmental NGOs, who have been emboldened by a stark warning from the ECJ’s Advocate General that trapping should be banned.

In June 2017, Eleanor Sharpston stated in an opinion to the ECJ that the court should rule that by opening a trapping season for finches, the Maltese government would fail to fulfil its obligations to abide with the Wild Birds Directive.

Finch trapping is illegal under EU law, and only allowable under strict conditions. Malta re-opened its closed trapping season after Labour was elected to power, but the European Commission took the government to court in October 2015.

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

The core of the Advocate General’s opinon 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 type of nets are a method of capture that is both large-scale and non-selective.

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

She also 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”.

BirdLife said the opinion was consistent with its position that the Birds Directive had to protect birds, not regulate hunting and trapping them, and that “Member States do not have a carte blanche to derogate”.

“The AG’s recommendations clearly go to show that political promises do not justify the adoption of a derogation. In view of this, BirdLife Malta reiterates its position taken during the latest Ornis Committee meeting that the Government should not accept the recommendation by Ornis to open this year’s trapping season before a final verdict is delivered by the ECJ later on this year.”

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