From John Azzopardi

A lot has been written and spoken about certain dispensations from the EU Birds Directive as it applies to Malta. Most of what has been stated is a misconception. The pity is that the wrong information keeps being repeated ad nausea by politicians, journalists, Government officials and the general public.

The facts of the matter are:

The current derogation from the requirements of the Birds Directive with respect to the ban on spring hunting was NOT part of the pre-accession negotiations with Malta. It is a unilateral, and unlawful, decision by the Maltese Government.

The only agreement negotiated by the Maltese Government in the pre-accession talks was a temporary transition period to enable the complete phasing out of finch trapping by 31 December 2008. This concession is not negotiable and will not be extended.

The Birds Directive has three main levels of protection:

The over-arching rule is the total protection of all species of naturally occurring birds in the wild state in the European territory of the member states, including their eggs, nests and habitats.

In addition, it imposes special conservation measures concerning the habitat of a number of protected bird species nominated in Annex I. These are species that are considered endangered or vulnerable to specific habitat changes, rare because of small populations or restricted distribution, or those requiring particular attention for reasons of the specific nature of their habitat. A number of birds that breed in the Maltese Islands are included in Annex I, among them the Cory’s Shearwater, the Yelkouan Shearwater, the European Storm Petrel and the Short-toed Lark. The Birds Directive demands that the habitat in which these species breed and live be fully protected in order to ensure their survival.

Finally, it ensures that birds that may be hunted are afforded full protection in the breeding season in spring. These birds are listed in Annex II.

As far as Malta is concerned, the main stumbling block concerns the huntable species of Annex II. The general principle underscoring Article 7 is that member states must ensure that hunting is compatible with the populations of the species concerned at a satisfactory level and that the practice does not jeopardise conservation efforts in their area of distribution. This clearly indicates that hunters do not have a carte blanche to hunt the birds in Annex II as they like. It clearly implies that the practice of hunting must not represent a significant threat to efforts for conservation of both huntable as well as non-huntable species. This provision needs to be assessed in the light of the nature and geographical scope of the “conservation efforts” in question, as these may vary from a local to an international level. If the species are subject to excessive hunting along their migration route it may impinge on conservation efforts elsewhere, including those outside the European Union.

Article 7 (4) obliges member states to ensure that hunting complies with the principles of wise use. This clearly implies sustainable consumptive use, with an emphasis on maintaining populations of species at favourable conservation status.

Both the quail and the turtle dove, which are currently hunted in Malta, have an unfavourable conservation status in Europe. The issue of allowing the continuation of hunting of species with an unfavourable status was discussed in section 2.7 of the European Parliament Committee on the Environment, Public Health and Consumer Protection. It was stated that “Where a species is declining, hunting cannot by definition be sustainable unless it forms part of a properly running management plan that also involves habitat conservation and other measures that will slow and ultimately reverse the decline.” Both quail and turtle dove are declining species, and therefore by definition their hunting in Malta is not sustainable, nor is it part of a management plan to reverse the decline.

Furthermore, Article 7 (4) lays down a number of key principles relating to the fixing of hunting seasons, the objective of which is to ensure that hunting does not take place during the most vulnerable periods of the annual cycle of huntable species. It is incumbent upon member states to ensure that the species to which hunting laws apply are not hunted during the rearing season or during the various stages of reproduction. In the case of migratory species, in particular the species to which hunting regulations apply, member states should see that these are not hunted during their period of reproduction or during their return to their rearing grounds.

In an unequivocal statement, the European Court observed1, “the provisions of Directives must be implemented with unquestionable binding force, and specificity, precision and clarity necessary to satisfy the requirements of legal certainty.” In another case2, the Court also noted “mere administrative practices, which by their nature may be changed at will by the authorities, cannot be regarded as constituting proper compliance with the obligation on Member States to which a Directive is addressed, pursuant to Article 189 of the Treaty.”

This case law clearly demonstrates that member states need to fully and clearly transpose the relevant provisions of Article 7.

The hunting of quail and turtle dove by Maltese hunters during the spring migration is clearly in violation of the provisions of Article 7. Maltese authorities continue to insist that the hunting of these birds can continue because of an allegedly negotiated derogation.

The derogation myth

Article 9 (1) of the Birds Directive is crystal clear about the conditions3 that must exist for a derogation to apply.

The over-arching condition is that there must be no other satisfactory solution.

One of the reasons listed exhaustively in Article 9(1) (a), (b) and (c) must exist.

These conditions are mutually supportive. If it can be proven that there is no satisfactory solution, then the conditions in Article 9(1) (a), (b) and (c) kick in. These conditions are exhaustive and there are no other valid ones.

No other satisfactory solution

In the classic Court Case C-10/96 the Advocate General observed: “A derogation under this provision can only be a last resort.” It is therefore clear that it cannot be argued that there is no other satisfactory solution because it would cause greater inconvenience to or compel a change in behaviour by the beneficiaries of the derogation. The Advocate General remarks: “It is in the nature of environmental protection that certain categories of persons may be required to amend their behaviour in pursuit of a general good; in this case, the abolition, as a consequence of the Directive, of the capture of birds for recreational purposes. That such activities may be ancestral or partake of an historical and cultural tradition does not suffice to justify a derogation from the Directive.”

The main thrust of the Malta derogation was the allegedly “traditional” nature of the hunting activity. It is clear that such an excuse is not justifiable under the Birds Directive or the case law.

Judicious use

A basic question arises as to whether, as a matter of law and fact, this condition can ever be satisfied in relation to hunting, especially proposed extensions of hunting seasons. In the case of recreational hunting, this question is inextricably linked to the question of whether such hunting can be considered “judicious use” for the purpose of Article 9(1)(c). In Case C-10/96 quoted above, the Court provides an important clarification, noting that the condition of judicious use “cannot be considered to have been met when the hunting period under the derogation coincides, without need, with periods in such the Directive aims to provide particular protection. There would be no such need if the sole purpose of the derogation authorising hunting were to extend the hunting periods for certain species of birds in territories which they already frequent during hunting periods fixed in accordance with Article 7 of the Directive.”

This legal principle is given further strength in Case C-182/02 of 2003. The judgement from this case makes it clear that derogation for the sole purpose of extending the hunting seasons would be unlawful. Where there is the opportunity to hunt the huntable species during the post reproduction migration (autumn), there can be no question that hunting of the species during the prenuptial migration (spring) is merely an extension of the hunting season and is therefore unlawful. The impact of taking of wild birds in autumn, when there is a surplus of young birds, will be very different from taking wild birds in spring when there is a much higher proportion of mature birds in breeding condition.

It is evident from the same judgement that recreational hunting does not automatically constitute a judicious use. The Court observed: “the use of birds for recreational hunting cannot, in any event, be considered judicious and, accordingly, acceptable for the purposes of the 11th recital in the preamble to the Directive.”

This Directive condition, together with supporting case law, rules out the possibility of having a legal spring hunting season in Malta. It is plainly obvious that the only reason for allowing the hunting of quail and turtle dove in spring is to extend the hunting season, because both these birds may be hunted in autumn. Therefore, it is clearly unlawful to allow spring hunting for these species. Even if spring were the only season during which these two species appeared in the Maltese Islands, it would still be against the Birds Directive to allow them to be hunted because the only reason for such licence would be recreational hunting. Recreational hunting is not considered a judicious use and is therefore prohibited. Allowing spring hunting goes directly against the very spirit of the Birds Directive.

Unfavourable conservation status

Derogations should not be granted for species or populations with unfavourable conservation status. The judgement in Court Case C-182/02 stated that hunting derogation will not be justified if it does not ensure the maintenance of the population of the species at a satisfactory level. Such an objective cannot be met if the species has an unfavourable conservation status. Therefore, the need to ensure the maintenance of the population of the species at a satisfactory level becomes a pre-condition for granting derogations.

The use of derogations must not undermine the objectives of the Bird Directive. Article 9(4) of the Bird Directive also implies that the use of derogations must not be incompatible with the objectives of the Directive.

Both the quail and the turtle dove have an unfavourable conservation status and therefore spring hunting cannot be permitted under the Birds Directive.

The Birds Directive does not allow derogation from its requirements merely for recreational hunting, even if the activity is claimed to be traditional or ancestral. Derogation is permitted only in the interests of public health and safety; in the interests of air safety; to prevent damage to crops, livestock, forests or water; for the protection of flora and fauna and for the purpose of research, teaching or re-introduction. Clearly, none of these motives apply in the case of quail and turtle dove hunting in Malta. Therefore, there can be no question that spring hunting in Malta is unlawful and goes directly against the Birds Directive.