Attorney General told government ‘play of words’ not enough to win EU trapping case

In emails seen by MaltaToday, Wild Birds Regulation Unit head Sergei Golovkin admits government and AG have diverging views on defence of finch trapping derogation

Wild Birds Regulation Unit Sergei Golovkin accused the AG of being ‘unconstructive’
Wild Birds Regulation Unit Sergei Golovkin accused the AG of being ‘unconstructive’

Emails sent by a senior lawyer at the Attorney General’s office warned government that its decision to plough ahead with reintroducing finch trapping was “contrary to the express and consistent legal advice of this Office.”

Emails seen by MaltaToday clearly show that contrary to the impression given by government, the AG warned that Malta’s chances win the case which will heard today were highly improbable given that the European Court of Justice (ECJ) was very different to national courts, “where mere rhetoric or a clever play of words may sometimes win one a case.” 

The AG’s office noted that it had a duty to tell the government the truth in regards to its chances of winning the case and it would be an unacceptable breach of trust if it were to mislead government into thinking that it has a strong case. 

The AG added that although it was aware that the chances were “very slim” it would do its best to argue its case as convincingly as possible. 

In an email sent to the head of the Wild Birds Regulation Unit Sergei Golovkin on 7 August 2014, the senior lawyer clearly explained that “the derogation would per se run counter to the purpose and spirit of the Birds’ Directive.”

The Attorney General’s office underlined that the legal arguments are “inherently very weak” that stand little chance of being upheld by the ECJ. 

This drew an angry reaction from Golovkin, who replied “I am not sure whether such a position is, at this stage particularly constructive.” 

He added that “it is no longer a situation of opting to apply derogation, but a situation of implementation of government decision and its defence in the face of potential legal challenge.” 

The court will begin hearing the European Commission’s case against Malta on finch trapping today, a practice that was banned following Malta’s accession to the EU but reintroduced by the Labour government.

In today’s sitting, the Maltese government will be represented at the courts by the Attorney General, aided by the local law firm CCX Advocates and global law firm Stibbe. 

The European Commission will be represented by Maltese lawyer Ken Mifsud Bonnici and German lawyer Christoph Hermes, both legal advisors on environmental law.

Yesterday government, dismissed the report on its divergences with the AG as “pure speculation” and a last-ditch attempt at influencing the proceedings of the European Court of Justice.

But in his email, the head of the Wild Birds Regulation Unit asked the AG whether any alternative arguments can be made if the AG’s office feels that the previously discussed legal arguments “are insufficiently strong, or may not be the best arguments available.” 

In a strongly worded reply, the AG’s office retorted that “all legal avenues were explored” and sternly replied to Golovkin’s accusations by saying “if nonetheless, you do indeed harbour any such doubts – or consider that this Office’s intention is purely to be ‘unconstructive’ in any way – then this is a very serious accusation indeed which ought, if at all, to be taken up at a far higher level.”

The senior lawyer said that while the AG’s office was obliged to advise government of any plausible legal justifications which may be successfully brought forward in defence of its position at EU law “it is also its undeniable duty to inform Government whenever its chosen course cannot be deemed ‘lawful’ under any constructive interpretation of applicable EU law and jurisprudence.” 

Pointing out that the AG’s office has taken up all past and present infringement actions against Malta and has “unparalleled legal expertise” in the field, the senior lawyer goes on to say that the office “has a sufficiently clear idea of which legal arguments may or may not be upheld” by the ECJ.

Trapping of all birds is prohibited by EU law and was phased out and eventually banned in Malta in 2009, in line with its EU accession treaty. However, Roderick Galdes, junior minister responsible for hunting, reintroduced the trapping of seven species of wild finches – on the assumption that Malta can derogate from EU law in a similar fashion to spring hunting. 

When applying the derogation, the government had argued that an article in the EU Birds Directive allows EU member states “where there is no other satisfactory solution… to permit, under strictly supervised conditions and on a selective basis, the capture, keeping or other judicious use of certain birds in small numbers.” 

However, the European Union’s Environment Commission – spearheaded by former Labour minister Karmenu Vella – has argued that the traditional Maltese use of clap nets is a non-selective trapping style, and that trapping birds for leisure does not constitute a “judicious” reason to derogate. 

In the second email sent to Golovkin on 8 August, the senior lawyer said “to put it very bluntly – and on the basis of the exhaustive objective analysis of the relevant provisions of the Birds’ Directive and relevant jurisprudence – the finch trapping derogation is clearly contrary to the purpose and spirit of the Birds’ Directive; and no amount of legal argumentation or rhetoric will be likely to convince the Commission or Court otherwise.”

The email explains that the derogation could be defended successfully if Malta proves in court that finch trapping serves some other legitimate aim as expressly mentioned in the directive’s Article 9(1)(a) or as recognised in the case law. 

However the senior lawyer warned that “arguing that the sole aim of this derogation is purely to safeguard a ‘traditional’ socio-cultural activity cannot, under any logical interpretation of the applicable law, be regarded as compatible with the provisions and spirit of the Birds’ Directive.”

Moreover, the lawyer pointed out that it was unanimously agreed that it would be too late to credibly invoke other legitimate purpose for finch trapping since it would be impossible to convince the Commission and ECJ that this was Malta’s genuine aim “and not just a last-minute excuse we have coined to mask the real reason behind the proposed derogation: namely the practice of trapping per se as socio-cultural activity, which Malta has repeatedly emphasised throughout its discussions with the Commission to date.” 

The senior lawyer said that if government was dissatisfied with this advice and assistance, government was free to seek independent legal advice, adding that the AG would be more than happy to take on board further legal arguments “which might increase Malta’s chances of success, however slightly.” 

In a terse reply, while acknowledging that government and the AG had diverging views Golovkin admitted that the defence put forward by the AG “are the best arguments that we have given the overall context.”

BirdLife: Political promises are no valid reason to derogate from trapping ban  

BirdLife Malta yesterday slammed the “political promises” that led to what it described as “the current free for all” in songbird trapping.

During a press conference held by the NGO outside the law courts yesterday morning, BirdLife Malta President Darryl Grima, made reference to MaltaToday’s revelations on Sunday that the AG had advised against opening the season, on the grounds that it was legally indefensible. 

The office of the AG is not a legal office but a constitutional institution whose job it is to give legal advice to government, Grima said. “It’s like there was a door with a no entry sign and a person, the AG is next to it telling you not to open it, but Malta still did so...So much so that Parliamentary Secretary for Agriculture Fisheries and Animal Rights Roderick Galdes chose not to use the AG to represent Malta’s case, opting instead for a private law firm.”

Mark Sultana, the organisation’s Chief Executive criticised the police for “nearly never taking the initiative” and alleged that the strict surveillance, a condition of the derogation, was merely window dressing and was “practically impossible to enforce.”

Sultana asked what the Opposition’s position on the issue was, pointing out that trapping was supposed to be phased out as part of Malta’s EU accession. “Political promises are not a justifiable reason to derogate.” This was not an action against Malta’s people, but against the government’s wrong decision in 2014, he said.