Last week, The Malta Independent on Sunday carried an article by M Fenech entitled “Thoughts about AD and Spring Hunting” that took Alternattiva Demokratika to task over what the author of the piece perceived as a dishonest stance adopted by Arnold Cassola and AD over the whole issue of fines and spring hunting.

The issue is still open as, in further correspondence to an English language daily, Dr Cassola made the strong statement that “Malta cannot get away without paying a hefty fine for the period May 2004-2008”, and also accused the government and its spokesperson of being “cheeky” and “arrogant”. He based his assertions on a case brought against France over Fisheries. The government is on record as saying that there is no prospect of fines.

Out of responsibility to our readers, The Malta Independent on Sunday has delved into the issue, also taking expert advice in order to try to come to an independent and objective assessment (in common language often referred to as the truth, a not so common commodity in the world of politics). The facts that we have established are the following:

• Malta has been taken to the European Court of Justice by the European Commission on the basis of Article 226 of the EC Treaty;

• France was taken to the same court under the same article over failure to comply with fisheries conservation regulations between 1984 and 1987;

• On 11 June 1991, the ECJ ruled, under Article 226, that France was at fault;

• Subsequent to this ruling, the European Commission conducted inspections in France, and determined that the Article 226 ruling had not been complied with by France;

• On 27 August 2002, after 11 years of France’s non-compliance with the Article 226 ruling, the European Commission opened a new case against France, under Article 228 of the EC Treaty, accusing it of non-compliance with the 1991 judgement;

• On 12 July 2005, the ECJ ruled on the Article 228 case, found against France and imposed fines on the basis of France’s non-compliance with the ruling of 11 June 1991.

From this research conducted by The Malta Independent on Sunday, it transpires very clearly that in the case used as an example by Dr Cassola, the fines imposed clearly have their legal basis in Article 228 of the EC Treaty, and not Article 226. In fact the judgement which established the fines on 12 July 2005, clearly states the following –

“...114 In a situation such as that which is the subject of the present judgment, in light of the fact that the breach of obligations has persisted for a long period since the judgment which initially established it and of the public and private interests at issue, it is essential to order payment of a lump sum (see paragraph 81 of the present judgment)...

115 The specific circumstances of the case are fairly assessed by setting the amount of the lump sum, which the French Republic will have to pay at E20,000,000.

116 The French Republic should therefore be ordered to pay to the Commission, into the account ‘European Community own resources’, a lump sum of E20,000,000...”

The ECJ also declared that

1. “...– by failing to carry out controls of fishing activities in accordance with the requirements laid down by the Community provisions, and

“ – by failing to ensure that action is taken in respect of infringements of the rules governing fishing activities in accordance with the requirements laid down by the Community provisions, the French Republic has not implemented all the necessary measures to comply with the judgment of 11 June 1991 in Case C-64/88 Commission v France and has accordingly failed to fulfil its obligations under Article 228 EC;

2. Orders the French Republic to pay to the Commission of the European Communities, into the account ‘European Community own resources’, a penalty payment of E57,761,250 for each period of six months from delivery of the present judgment at the end of which the judgment in Case C-64/88 Commission v France has not yet been fully complied with;

3. Orders the French Republic to pay to the Commission of the European Communities, into the account ‘European Community own resources’, a lump sum of E20 million;”

The full judgement, from which the above excerpts are taken, can be found at:

http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&Submit=Rechercher&alldocs=alldocs&docj=docj&docop=docop&docor=docor&docjo=docjo&numaff=C-304/02&datefs=&datefe =&nomusuel=&domaine=&mots=&resmax=100

It is abundantly clear from this research that the fine referred to by Cassola was imposed on France on the basis of Article 228, and not on the basis of Article 226. It is just as clear that the fine does not cover the period prior to the 1991 judgement under Article 226. Using the provisions of the relevant Articles of the EC Treaty as the basis, as also supported by the precedent of the very same case that Cassola is using to support his claim, we can state with conviction that the AD’s position on this is wrong.

This does not mean that Malta cannot receive fines, but that Malta cannot be fined for the period prior to the judgement that has not yet been issued under Article 226. If the Maltese government is handed down an ECJ judgement that rules against allowing spring hunting and flouts the judgement, it will be liable to face another court case that might impose fines as from that moment onwards. There is absolutely no legal provision for imposing fines for what has happened to date.

Since the Maltese government seems to have already declared that it will abide by ECJ rulings, there does not seem to be a case for even referring to fines, let alone categorical statements of the type made by AD and Dr Cassola.

We, as a newspaper, have a responsibility of not just reporting the facts, but also of using our resources to present honest and unbiased assessments to our readers. It seems that in this particular issue, Dr Cassola should not shoot his mouth off before making sure he’s correct, as otherwise, his accusation of arrogance and cheek against the government might very well end up being bounced right back at him. The government has been 100 per cent correct in its statements over fines, while AD has repeatedly misinformed.