Nature: Commission decides to refer MALTA to the Court of Justice of the European Union over finch trapping

Today the Commission decided to refer Malta to the Court of Justice of the European Union for failing to correctly apply the Birds Directive (Directive 2009/147/EC) by incorrectly applying a derogation regime and authorising the trapping of protected finches for research purposes.

The Birds Directive requires a general system of protection for wild birds and allows derogations on hunting and trapping only subject to strict conditions. These are key requirements to protect biodiversity across the EU. The European Green Deal and the EU Biodiversity Strategy for 2030 both indicate that it is crucial for the EU to halt its biodiversity loss by preserving natural sites and restoring damaged ecosystems to good ecological status.

The issue of finch trapping was already subject to infringement proceedings in the past, leading to a ruling of the Court of Justice in 2018 declaring a similar trapping derogation unlawful. Subsequently, Malta repealed the relevant derogation regime and committed not to reopen it. However, in 2020, Malta re-authorised finch trapping, this time invoking another derogation provision, namely under research purposes.

The Commission considers that, even though the declared objective is ‘research’, several elements indicate that the scheme – in practice – allows for a large number of birds to be captured without being reported, contrary to the strict conditions for derogations set by the Birds Directive. The Commission therefore sent a letter of formal notice to Malta in December 2020, followed by a reasoned opinion in June 2021. Although Malta repealed the incriminated legislation in early October, it did not allay the Commission’s concerns: the trapping licences for the 2021 season had already been issued on the basis of the repealed 2020 framework, and new rules have been swiftly adopted with only minor changes compared to the previous legal regime.

The Commission therefore considers the reply by the Maltese authorities to both the letter of formal notice and the reasoned opinion as unsatisfactory, and is therefore referring Malta to the Court of Justice of the European Union. 

Background

The Birds Directive aims to protect all species of wild birds that occur naturally in the EU. The Directive bans activities that directly threaten birds such as deliberate killing or capture, destruction of nests and removal of eggs, and associated activities such as trading in live or dead birds, with a few exceptions. It also places great emphasis on the protection of habitats for endangered and migratory species, especially through the establishment of a network of Special Protection Areas (SPAs).

The directive provides limited scope for derogations from the requirement of strict protection where there is no other satisfactory solution, for instance, in the interest of public health and safety or air safety, to prevent serious damage to crops, livestock, forests, fisheries and water, and for the protection of flora and fauna. Derogations may also be permitted for the purposes of research and teaching, repopulation, reintroduction and for the breeding necessary for these purposes, subject to strict conditions.

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