The European Court of Justice ruled that the by adopting a derogation allowing the live capture of individuals of 7 species of wild finches, Malta is in breach of the Birds Directive.

Malta has failed to fulfil its obligations under Articles 5, 8(1) 9(1) of Directive 2009/147 on the conservation of wild birds, the ruling, published Thursday, said.

The Finches Project does not establish a genuine research purpose and cannot be considered as being justified under the derogation of Article 9(1)(b) of the Directive.

Malta has also failed to establish that its derogating regime pursues a research objective, because that regime is: a) not based on scientific methods, b) gives rise to defective application, c) pursues an objective unconnected with wild finches conservation and, in any event, d) is inappropriate for attaining the declared objective.

Malta has also failed to state reasons for the absence of any other satisfactory solution, and has failed to demonstrate the absence of any other satisfactory solution, the judgment says.

In a statement, the Government of Malta said it acknowledged the Court's ruling, which declared that one element of the research derogation applied by Malta in the years 2020, 2021, and 2022 was not in compliance with the Birds Directive. A detailed analysis of the judgment is currently underway to assess the implications and the way forward.

The government said it remained resolute in defending the lawful practices of hunters and trappers and will continue to engage with all relevant stakeholders to ensure their concerns are appropriately addressed, in full respect of EU law and this judgment.

Minister for Gozo and Planning Clint Camilleri was present at the Court of Justice in Luxembourg to personally witness the delivery of the ruling, the statement said.

The Federation for Hunting and Conservation - Malta (FKNK), for its part, thanked the Maltese Government, in particular Minister Camilleri, for its determination and commitment to continue to defend the legal practices of hunters and trappers in order to adequately address their concerns.

The FKNK said it will continue to offer its expertise and resources to the government in order to find a satisfactory solution for a way forward.

In its ruling, the Court also deliberated that the amendments to Malta's legal framework and new systems to uphold the research derogation fail to demonstrate the regulatory framework adopted in 2021 constituting a new regime in relation to the subject-matter of the present action.

It also ruled that the the Commission's application clearly states that the contested derogation regime for research includes the 2020 framework rules, the 2020 declaration, the 2021 framework rules and the 2021 and 2022 declarations, as well as any future measures of the same type constituting the same conduct during the 'research periods' of 2020, 2021 and 2022 do not comply with Article 9 of Directive 2009/147.

The Court elaborated that no such precise and adequate reasoning as to why there is no such solution was given and neither any mention of other scientific research methods currently used in the ornithological field, either to confirm or to reject them.

The infringement procedure was initiated against Malta by the European Commission alleging that the country failed to fulfil the conditions required for the research derogation within the Birds Directive and furthermore failed to "demonstrate the absence of another satisfactory solution".

Wild finches are protected by the Birds Directive which aims to preserve all bird species diversity. The EU forbids the deliberate killing or capture of birds and the use of "large scale or non-selective methods" to capture the birds, however the Directive also gives certain circumstances in which this general prohibition may be derogated.

When Malta joined the EU, the Accession Treaty gave a transition period in which it committed itself to phase out the prohibited bird trapping activities. Though Malta banned finch trapping, in 2014 it adopted a the recreational derogation regime which allowed the trapping of 7 species of wild finches as a recreational activity.

However, in 2018 the European Court declared the regime to have failed to meet the required derogation conditions, particularly the small number/'knowledge gap' criterion which allowed Malta to repeal it. In 2020, Malta adopted the Finches Project under Framework Regulations which allowed the live capture of 7 wild finches once again but under the derogation for the purposes of research as stipulated by the Directive.

That said, the European Commission saw it as a 'cover up' to enable to continuation of recreational finch trapping which, amongst other reasons, prompted the Commission to initiate a novel infringement action. On 3 December 2020, the Commission had issued Malta a letter of formal notice indicating that the Finches Project is inconsistent with the provisions of the Directive and that the derogation cited was unjustified.

The Commission sent Malta a letter of formal notice indicating that the Finches Project is inconsistent with the provisions of the Directive and not justified by the derogation provided, that of serving research purposes and answering the research question, "Where do finches that migrate over Malta during post-nuptial (autumn) migration come from?".

The Commission then gave its reasoned opinion of the grievances on 9 June 2021 through a formal notice. In response, following discussions between the two parties, Malta repealed Framework Regulations 2020 and adopted Framework Regulations 2021 on 19 October, 2021.

On 20 December 2023, the Commission proceeded to lodge its application to the Courts requesting them to declare that Malta failed to uphold its obligations by the Directive. In response, Malta filed its defence on 21 April 2023 calling on the Court to dismiss the action on the basis of inadmissibility or, alternatively, as unfounded with an oral hearing being held at Luxembourg in March.

Malta's defence reasoned that the action was inadmissible due to the change in national legislation between the issuing of the Commission's opinion and the filing of the application. However, the Commission's opinion referred to Malta's Finches Project as regulated by Framework Regulations 2020, whilst its application also challenged Framework Regulations 2021, which were a result of Malta's national amendments. Therefore, the Commission views both Framework Regulations as constituting the same conduct and therefore treats them collectively as one measure.

The European Court found that by adopting a derogation allowing the live capture of individuals of 7 species of wild finches, Malta failed to fulfil its obligations under Articles 5, 8(1) 9(1) of Directive 2009/147 on the conservation of wild birds. Furthermore, it also found that The Finches Project does not establish a genuine research purpose and hence cannot be considered as being justified under the derogation of Article 9(1)(b) of the Directive.