BirdLife Malta today welcomed the unequivocal Opinion by European Court of Justice (ECJ) Advocate General Tamara Ćapeta delivered today in Luxembourg in “Case C-23/23 European Commission v Republic of Malta” that has recommended that the Court should find that Malta’s derogation allowing live capture of finches breaches the Birds Directive of the European Union.

The AG is suggesting that the Court should declare that by adopting a derogation scheme allowing the live capturing of seven species of wild finches, Malta has failed to observe its obligations under EU law, and order the Republic of Malta to bear its own costs and to pay those incurred by the European Commission, BirdLife said in a statement.

In her recommendation, the EU Advocate General has found that Malta’s Finches Project “is not a genuine research project.” She stated that “the current capture and disturbance of wild finches is disproportionate to the scientific benefit of the project” and therefore called the measure “unjustifiable under EU law.”

Case 23/23 – Commission v Malta – began after the European Commission initiated infringement proceedings against Malta after alleging that the country “has failed to fulfill the conditions required for the research derogation” as listed under Article 9(1)(b) of the Birds Directive. The Commission also alleged that Malta “also failed to demonstrate the absence of another satisfactory solution.”

Malta has been going back-and-forth with the European Union in its attempts to protect bird trapping on the islands since its accession negotiations to enter the Union two decades ago. 

Malta’s accession treaty into the Union obliged Malta to partake in a transition period to gradually phase out its bird trapping activities since wild finches are protected under the EU’s Birds Directive, and therefore, these practices are illegal within the European Union.

After initially banning finch trapping, Malta in 2014 allowed the trapping of seven species of wild finches as a recreational activity. This regime was declared by the European Courts to have failed to meet the respective derogation conditions, leading to its repeal.

On 21 April 2023, Malta filed its defence, requesting the Court to dismiss the Commission’s allegations as unfounded under a plea of inadmissibility. AG Ćapeta has now suggested that this plea should be rejected and that, contrary to what Malta alleged, Malta’s right to defence was also respected in these proceedings so far.

The Advocate General’s Opinion is not binding on the Court of Justice of the European Union; the judgement on this case will be published at a later date as its Judges are commencing their deliberations.

The AG Opinion is a clear indication that once again BirdLife Malta was right in all its arguments against this shameful derogation and that it had given the right advice to the ORNIS Committee and to the Government itself not to breach the Birds Directive of the European Union (EU). Such demands were purposely negated and rejected for political gain, so as to allow those that enjoyed bird trapping to continue doing so, albeit under a smokescreen.

Once again it should now be clear to present and future governments that political gain does not justify any derogations from the European Birds Directive and that science and respect to nature should be the basis of all future decisions.

Whilst BirdLife Malta is satisfied with the conclusions of the AG Opinion, these should now pave the way for the ECJ to rule against Malta’s smokescreen finch ‘scientific research’ derogation, once and for all.

“We therefore look forward to the final judgement, hopefully to be delivered before the summer recess of the European Court of Justice. In view of today’s developments, we also call on the Government not to open another trapping season this year, before the ECJ delivers its final ruling since it is now clear that applying this derogation in the past years was in breach of European law,” BirdLife said.

With the significant step forward taken today, we are now finally heading towards the conclusion of a process that has dragged on for more than three years. It was in December 2020 when fresh Infringement Proceedings against Malta on finch trapping were initiated following the Maltese Government’s attempt to disguise the practice as a research project, in the face of a landmark 2018 judgement that found Malta guilty on all main counts of failing to fulfil its obligations under EU law, ordering a complete ban on finch trapping in the Maltese Islands.

In spite of this clear verdict, in 2020 and yet again in 2021, 2022 and 2023, the Government opened a trapping season for finches with the excuse that trappers would be carrying out a scientific study, and with trappers expected to release the birds soon after they catch them, after recording details of birds carrying a ring and submitting the information to the Wild Birds Regulation Unit (WBRU). There was, however, no fooling the European Commission (EC), with the reopening of the season in 2020 immediately leading the Commission to kickstart fresh legal action against Malta on finch trapping just a couple of months after.

The first step taken in December 2020 was a Letter of Formal Notice sent to the Maltese Government. After responses from the Government to justify that it was a ‘research’ project failed, in June 2021 the Commission took its action a step further, issuing a second warning in the form of a Reasoned Opinion, giving the Government a month to remedy the situation or potentially face the prospect of another case at the European Court.

After the Government once again ignored the second formal warning, the Commission had no other option but to take the infringement case to the next and final level, referring Malta once again to the ECJ on 12 November 2021. The case was officially filed by the EC on 20 January 2023 (when the application was lodged, kicking off the legal proceedings) and officially came to an end with the final hearing on 7th March 2024.

On that date it was announced that the ECJ Advocate General would be delivering her Opinion today, 30th of May. Meanwhile, despite the final stage in the infringement case landing Malta yet again at the ECJ, the Government still persisted in ignoring the EC’s warnings and opened yet another finch trapping season in 2022 and 2023. BirdLife Malta’s findings have estimated that just in the 2023 season, around 51,400 finches were taken from the wild as a result of the derogation. Today’s AG Opinion, less than two weeks away from the European Parliament elections being held in Malta on Saturday 8th June, should also send a message to those who during the ongoing electoral campaign have opted to be populist by not only defending such derogations, but even promising further similar derogations if they are elected.

It is now clear that the decisions taken by Minister Clint Camilleri are going to be declared illegal by the European Court and we can only hope that this is a lesson to be learnt by all politicians.

“Today the ECJ has sent a clear message to populist politicians like Alex Agius Saliba and Peter Agius who in order to attract votes from the hunting lobby continue promising activities that breach the European Birds Directive. It is clear that these promises are only short-term to attract votes as the European Union will not tolerate further breaches through derogations of the Birds Directive,” BirdLife said.

Photo: Ben Metzger/BirdLife