French bird trapping debacle in EU court could have Malta effect

A European Court of Justice (ECJ) decision on bird trapping in France could have an effect on Malta’s demands to derogate from the European ban on bird trapping.

Trapping of birds is banned by the EU’s Birds Directive, and derogating from this ban requires that member states respect stringent criteria.

But the European Court of Justice has now declared that member states cannot allow bird trapping simply by claiming it is a traditional way of catching birds without no suitable alternative.

The European case was brought by two French bird conservationist organisations – including BirdLife France (LPO) – who said the French government had not respected the conditions to derogate from the EU trapping ban. Unlike Maltese clap-net traps, the French case concerned the use of limesticks with glue, which are used to entangle birds as they fly into a trap.

The Court agreed that even though the method of hunting using limes was traditional, this reasoning in itself was not sufficient to argue that no other satisfactory solution can be used instead.

The ECJ said that to derogate from the ban on trapping, member states must ensure that all actions affecting protected species must be authorised by decisions with “a clear and sufficient statement of reasons”; but merely declaring that there is no other satisfactory solution to traditional trapping, does not mean it is “based on the best relevant scientific knowledge”.

The Court said that while traditional activities could constitute ‘judicious use’ – a criterion in derogating from Birds Directive – it does not mean member states get to derogate from the Directive without any obligation to protect birds. When no other alternatives exist to bird trapping, member states must still compare the various solutions that fulfil the conditions of derogation, namely, ensuring welfare requirements of animals.

“The Court points out that such solutions appear to exist. It has already held that the breeding and reproduction of protected species in captivity may, if they prove to be possible, constitute another satisfactory solution and that the transport of birds which have been lawfully captured or kept also constitutes judicious use…”

The Court however did say that member states can derogate from the trapping ban if the method permits the capture of certain birds on a selective basis. But that requires member states to assess how trapping will affect non-target birds and the possible harm caused to them. “The condition of selectivity cannot be satisfied unless that by-catch is limited in size, that is to say, it concerns only a very small number of specimens captured accidentally for a limited period, and can be released without sustaining harm other than negligible harm.”

While the ECJ ruling practically paves the way to outlaw limestick trapping in France, the decision makes it clear that member states, like Malta, may not authorise trapping when it leads to by-catch that might be harmed in the process. Malta has an even tougher battle to overcome since in its EU Accession Treaty, Malta committed to phase out trapping by 2008.