Government ignored AG advice against opening trapping season

The government proceeded with opening the trapping season in 2014 despite a clear warning by the Attorney General’s office that Malta stood no chance of successfully defending its case in court and should not apply the derogation. 

The European Court of Justice (ECJ) will on Wednesday hold the hearing on finch trapping in Malta, a practice that was banned following Malta’s accession to the EU but re-introduced by the Labour government three years ago.

But the government was warned that the ECJ would not uphold the derogation because finches are a protected species, trapping by clap-nets is specifically prohibited by the Birds’ Directive and arguing that trapping has a socio-cultural and traditional purpose was not a legitimate defence.

Sources within the AG’s office told MaltaToday that the government was warned that the derogation ran counter to the spirit and purpose of the Birds Directive and that in the event of infringement proceedings Malta’s legal arguments were “inherently weak.” 

The European Commission officially referred Malta to the EU courts in September 2015, after the government ignored its formal warnings.
Trapping of all birds is prohibited by EU law and was phased out and eventually banned in Malta in 2009, in line with its EU accession treaty. However, Roderick Galdes, junior minister responsible for hunting, reintroduced the trapping of seven species of wild finches – on the assumption that Malta can derogate from EU law in a similar fashion to spring hunting.

Derogation cannot be defended, AG warned

But the AG’s office had made it abundantly clear that should the government press ahead with applying the derogation it would be doing so against its express and consistent legal advice, the sources said.

When applying the derogation, the government had argued that an article in the EU Birds Directive allows EU member states “where there is no other satisfactory solution… to permit, under strictly supervised conditions and on a selective basis, the capture, keeping or other judicious use of certain birds in small numbers.”

However, the European Union’s Environment Commission – spearheaded by former Labour minister Karmenu Vella – has argued that the traditional Maltese use of clap nets is a non-selective trapping style, and that trapping birds for leisure does not constitute a “judicious” reason to derogate. 

The government, through the Wild Birds Regulation Unit, did not heed the AG’s advice and the chances of having the derogation upheld by the ECJ look slim.

Sources told MaltaToday that the AG’s office had told government officials within the environment ministry that it would not mislead the government into thinking that it had a strong case and reiterated that given its expertise on the matter, it was clear that no amount of rhetoric would stop the ECJ from throwing out Malta’s case.

Despite this, the government made it clear that it was not satisfied with the legal advice and sought an independent legal opinion.

On Wednesday, the Maltese government will be represented at the courts by the Attorney General, aided by the local law firm CCX Advocates and global law firm Stibbe.

The European Commission will be represented by Maltese lawyer Ken Mifsud Bonnici and German lawyer Christoph Hermes, both legal advisors on environmental law.

BirdLife Malta decried the practice of finch trapping, warning that the birds are kept in small cages for hours in order to attract more finches to the trapping sites.

“The stress of being handled, transported and kept in a confined space is often fatal,” it said. 

The hunting federation FKNK has sent over 11,000 letters – each individually signed by a Maltese trapper – to Karmenu Vella, urging him to safeguard the “sociocultural tradition” of trapping.

“Back in September, Vella had assured the FKNK that he would send us a general response to the letters,” FKNK chief executive Lino Farrugia said in a statement. “As soon as we receive his response, we will publish it for the benefit of the thousands of citizens who have signed and sent a letter.”