Interview | Sunday, 07 February 2010

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Second time unlucky

If the Government reopens the spring hunting season this year, Malta will run the risk of being fined by the European Court of Justice. Birdlife director TOLGA TEMUGE shoots down hunters’ claims that ‘limited hunting’ is possible in the light of last year’s verdict

“Let’s not fool ourselves: there is no such thing as a ‘limited’ spring hunting season. Those words are not mentioned anywhere in the European Court verdict.”
Tolga Temuge, Birdlife Malta’s international director, is in defiant mode when we meet at the NGO’s Ta’ Xbiex headquarters to discuss the latest apparent contradictions surrounding this never-ending controversy.
Like many members of a broad ‘anti-spring hunting coalition’ – formed in 2007 to campaign for the eponymous cause – Temuge appears to be losing patience with the authorities over their interpretation of last year’s ruling. Only he is more outspoken than most.
“Malta has already deceived the European Court, by submitting flawed data that grossly distorted the numbers of quail and turtledoves shot in spring and autumn,” he says when asked for his own interpretation of the latest noises from Castille. “In so doing, the government has prepared a terrible trap for itself: if it chooses to re-open the hunting season this spring, it will afterwards have to justify its reasons for applying the derogation. It can only do this by supplying figures which are different from the ones already submitted in the past...”
In other words, government’s legal representatives in Luxembourg can be forced to present figures that cannot be realistically justified this time round - with consequences that may well prove expensive for the Maltese taxpayer.
But wait – we have clearly got ahead of ourselves in this discussion. Let us briefly rewind, as the issue we are discussing - i.e., whether or not the European Court has ruled in favour of a renewed spring hunting season, as claimed by the hunters and echoed by the Prime Minister – is infinitely more complex than it appears at first.
When Malta acceded to the European Union in 2004, it bound itself to abide by the conditions of the European Wild Birds Directive – a law which, at face value, does not allow the taking of birds during the breeding season. And with EU membership being the hotly contested issue it was, the question of spring hunting rapidly rose to dominate the political agenda of both Nationalist and Labour Parties, during the long and often tense referendum campaign of 2003.
At the end of lengthy negotiations with the EU, it was announced that Malta had secured a ‘derogation’ which would enable spring hunting to carry on as normal for at least two species of gamebird: the common quail (summien), and turtledove (gamiem).
On closer inspection, however, it turned out that all Malta had really obtained was a written acknowledgement of its right to apply a derogation according to Article 9 of the same directive (a right which is common to all member states, and which therefore does not qualify as a ‘concession’ at all).
Be that as it may, Malta proceeded to open the spring season the following March, just as it had always done in the past... and did so every year until 2008, when the European Court of Justice finally issued an interim order to Malta to stop spring hunting and trapping.
The European Court of Justice in Luxembourg reached its final verdict the following year: ostensibly finding Malta guilty of having breached the Wild Birds Directive for allowing spring hunting in 2004, 2005, 2006 and 2007.
But the hunters’ representatives – including both the Federation of Hunting Associations (FKNK) and St Hubert’s Hunters – nonetheless interpreted the same verdict to mean that Government can theoretically open this year’s spring hunting season regardless... so long as ‘certain conditions’ are met. As FKNK secretary Lino Farrugia triumphantly put it at the time, Maltese hunters had “lost the battle, but won the war.”
This view, hotly contested by Birdlife, appears to be shared fully by the present Government. At a party event in Gozo last weekend, Prime Minister Lawrence Gonzi was even reported as saying that his government is currently seeking an ‘agreement’ with the EU over this year’s spring hunting season, as though the issue were somehow up for negotiation.
“That is absolutely false,” Temuge counters without hesitation. “If anyone should know that it is not even possible to negotiate an agreement for hunting in the spring season, that person is Dr Gonzi himself. He should know more than anyone that it is not possible to cut a deal with the Commission from beforehand. That’s not how the Commission works...”
Tolga argues that from the very beginning, the government has consistently tried to transfer the onus of responsibility for the final decision onto the European Commission, so as not to lose face with either hunters or birders.
“But all along, the decision rests with the government of the member state. The European Commission has no jurisdiction to stop member states from applying derogations. It cannot issue an order from beforehand to stop the season from opening. What it can do – and what it did do, in 2006 – is request a justification of the derogation afterwards, and then initiate legal action if it is not satisfied.”
But, I ask, what about the famous ‘interim measures’, issued in 2008 precisely to halt the spring season?
Tolga nods in acknowledgement of the example, but points out that it was the European Court of Justice that issued interim measures, following two warnings by the Commission for Malta’s past actions. This, he claims, is not applicable to the present scenario.
“The interim measures were issued to ensure that Malta did not persist in a state of illegality, at a time when that state was being challenged in court. The case has already concluded that Malta’s derogation was unlawful. So now, the Commission will monitor Malta’s next steps under Article 260 of the Lisbon Treaty and take action if necessary.”
All the same, it remains unclear why Birdlife and the hunters’ associations have interpreted the same verdict along such totally different lines. Tolga concedes that the situation is complicated, but explains that it all boils down to a number of ‘tests’, whereby certain conditions have to be met in order for a derogation to be considered valid.
“These include the ‘alternative’ test, the ‘proportionality’ test, the ‘small numbers’ test and the test of ‘strict supervision’, as well as other conditions,” he says, adding that according to the ECJ verdict last year, Malta managed to pass only one of these tests: the first one.
“The reason the hunters are interpreting the verdict positively is because of the Court’s observation that autumn is not sufficient an alternative to spring. But even here, the reason the Court ruled this way is because the data supplied by Malta was flawed to begin with...”
Before illustrating his argument about the flawed data, Tolga emphatically insists that even if this were not the case, the ECJ verdict would still preclude the opening of a spring season this year, because the second test (“proportionality”) was failed.
But back to the figures. The alternative test sets out to establish whether there is any satisfactory alternative to spring hunting of turtledove and quail in Malta. In this case, the ECJ verdict stated that autumn appeared to be insufficient as an alternative to spring. Tolga himself agrees that it was a fair observation, on the basis of the data available before the Court... the problem, however, is that the data itself was wildly inaccurate.
According to figures submitted to the Court by the Attorney General – and which in turn were based on ‘bag counts’ provided by the hunters themselves – half of Malta’s hunters did not manage a bag and single turtledove or quail in the entire autumn season.
“Look at the figures supplied in court by the Government. According to the hunters’ own bag count, they shot 15,000 quail and 32,000 turtledove in spring. This, we were told, represents three times the amount of quail, and eight times the number of turtledove they would shoot in autumn...”
A quick mathematical calculation therefore fixes the number of quail shot in autumn at 5,000, and turtledove at 4,000. For Tolga, these figures constitute ‘a joke’.
“Are we expected to believe that they only shot 4,000 turtledoves, in the whole of the autumn season? Are you kidding me? That works out at less than half a turtledove per hunter. If we were talking about four birds per hunter in an entire season, it would at least be believable. But half a turtledove? One bird for every two hunters? That’s crazy...”
Ironically, the hunters’ representatives appear to agree with the Birdlife director on this issue. Tolga invites me to consider separate statements made by FKNK’s Lino Farrugia and Mark Mifsud Bonnici (secretary of the St Hubert’s Association): both of whom openly doubted the scientific accuracy of the bag counts.
“Lino Farrugia himself said that the hunters’ bag count of 10,000 turtledoves for 2001 was ‘a bit on the low side’,” Tolga says with reference to an article in The Times (25 November 2005). “He said that ‘100,000’ would have been ‘more realistic’. Similarly, Mifsud Bonnici wrote a letter to the same newspaper saying that the bag count figures were ‘worthless’ and that they had ‘no scientific value’... And yet, these are the same figures they are now quoting to claim that the Court ruled in their favour...”
Considering that these were the figures supplied by Malta’s Attorney General, and on which the Court reached its verdict, it becomes difficult to understand exactly how the Maltese government will try and retroactively justify any future derogation.
“They have shot themselves in the foot,” Tolga continues. “If the government intends to open the spring season this year, it knows perfectly well that it will afterwards have to justify its decision to the European Commission. What figures are they going to supply this time? The same figures, which they know have failed the proportionality test? They will have to claim something less than they reported for spring in the past, and closer to the extremely low figures they reported for autumn. So it sounds like they will have to go for figures claiming that each hunter got only a bird or two. So what ‘bag limits per day per hunter’ is Lino Farrugia talking about?”
This brings us to the second of the three tests - ‘proportionality’: an admittedly complex issue, whereby the Court would only allow derogation if it can be established that the number of birds killed in spring would be proportionally acceptable compared to the (much lower) number they would be restricted to if there was only autumn in which to shoot.
Based on the figures supplied in last year’s case, Tolga argues that it is simply impossible to meet this condition.
“As already explained, Malta informed the Court that spring figures are 15,000 quail and 32,000 turtledove over the whole season. The hunters themselves described these figures as ‘lower than actual figures’. We all know the real amount is much higher than that. But even these low figures were considered too high for the proportionality condition to be met. So on the basis of the same data, how can the hunters seriously expect the season to be opened?”
On another level, Tolga argues that the same figures would in any case translate into an impracticable situation.
“Let’s take the example of a hunter who goes out for the first day of the season, and there happens to be an influx of turtledove on that day,” Tolga explains. “He shoots three in one day. Well, according to the figures supplied by Malta in the ECJ case – and which have already been described as ‘too high’ by the same court – that hunter would already have already exhausted more than his entire quota for the entire season...”
According to Tolga, it is technically impossible for the amount of licensed hunters in Malta to abide by what the Court would consider an ‘acceptable’ number of birds shot over the spring season.
“It would be impossible even if there was adequate supervision... which, remember, is another of the conditions that Malta would have to meet to justify the derogation. But we all know there is not enough supervision. We have been demanding a wildlife crime unit for years, and even the hunters agree with us on this issue... although they made it conditional on spring hunting being allowed. But as things stand today, the ALE (Administrative Law Enforcement Agency) is still limited to only three vehicles and around 25 officers... how can this situation possibly qualify as ‘strict supervision’...?”
What does Tolga make of the hunters’ admission that they are willing to accept more limitations – for instance, a shorter season? Tolga dismisses the argument as yet another meaningless gimmick.
“The hunters claim they are willing to ‘sacrifice’ March in order to salvage hunting in spring... but we all know that the turtledove season really begins in April anyway. As for lower numbers of birds to be shot... how can we tell if this will be enforced, when the enforcement capability does not exist? Meanwhile, the hunters tell us they are willing to regulate themselves... well, what’s keeping them from doing just that? At a press conference last year, Lino Farrugia revealed that the number of hunters expelled from FKNK for illegal hunting was ‘less than 20’. But what does that mean, when they have thousands of members? Four is ‘less than 20’. So is only one....”
Besides, he adds: we are also ignoring the wider implications of a hunting season next month, should the government make the mistake of allowing one.
“Malta will soon have another problem on its hands,” he says ominously. “Knowing that the figures already submitted for previous years – and supposedly based on hunters’ own bag counts – were too high to meet the proportionality requirement, the government also knows it can’t represent the same figures again to justify any future derogation. So what figures will they submit next time?
“Malta has already been found guilty of breaching the Birds Directive. There were no fines the first time, but any member state will tell you that the ECJ doesn’t take kindly to repeat offenders. There will, of course, be fines to pay if Malta is found guilty a second time.”

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A can of worms

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