In view of wildly conflicting interpretations of last year’s European Court ruling on spring hunting, RAPHAEL VASSALLO analyses the chances of a successful derogation this year
As we all know from those financial services ads on TV, ‘past performance is no guarantee of future success’.
It seems this principle applies also to judgements delivered by the European Court of Justice (ECJ) in Luxembourg: which last year succeeded in mystifying Malta with a ruling that seemed to condemn and condone spring hunting in the same breath.
On one level, the judgement delivered on 10 September 2009 made it clear that Malta had violated the European Wild Birds Directive by permitting spring hunting between 2004 and 2007. But the same judgement also acknowledged that a derogation may be possible in future, so long as certain conditions are met.
Now that the Ornis Committee has fixed specific dates for this year’s spring hunting season (April 10-30), the question arises as a matter of course. Will the Commission once again open infringement procedures against Malta? And if so, will Malta be fined?
Birdlife Malta executive director Tolga Temuge insists that the answers are ‘yes’ and ‘yes’ respectively.
“Malta has already been found guilty of breaching the Birds Directive,” he warned in an interview with MaltaToday last month. “There were no fines the first time, but any member state will tell you that the ECJ doesn’t take kindly to repeat offenders.”
Needless to add, hunters argue otherwise. “We know we can’t have two whole months in spring, as we have always had in the past,” FKNK secretary Lino Farrugia told this newspaper. “We know the derogation will only be justified with limited numbers of hunters. We also need to introduce bag limits, among other measures that will restrict hunting...”
Faced with such wildly conflicting views, MaltaToday sought an independent legal opinion. Enter Prof. Peter Xuereb, head of the Department of European and Comparative Law at the University of Malta, who explained that last year’s ruling must be viewed in the context of the principle of proportionality.
“This principle requires any measure taken by the Member States (here, Malta) to be no more than is necessary to achieve the required result (here, a leisure pursuit – i.e. hunting), while not impinging too far on any competing interest and objective (here, the conservation of the particular species in the Malta context),” he said.
“In my view, this leaves the way open for a new solution that may well involve spring hunting... provided, at least as one certain condition, that the period is shorter than that of ‘several weeks’ (two months) proposed by government thus far.
“All the conditions, taken together, would need to lead to a demonstrable balancing of the competing interests. It is also clear that the conditions under which such spring hunting might be declared permissible would need to be supported by documentary evidence, and while it is not perhaps 100% certain from the judgment that the same documentary evidence used by the Court in the case just decided would be sufficient to support the introduction of a spring season that is shorter than that so far proposed, it is quite possible that it would be so.
“But this depends on how much shorter, and there is no guidance from the Court judgment on this rather crucial point.”
Future conditional According to this interpretation, the ECJ ruling would theoretically enable the government to apply derogations in future... provided ‘certain conditions’ are met. These include the annual submission of a report to the Commission; ‘strict supervision’ of the hunting situation; that only ‘small numbers’ are shot; and that the hunting season “does not jeopardise conservation efforts in their distribution area”. (Article 7.1), among others.
Hence the difficulty: for Malta had failed to meet any of these conditions when derogating between 2004 and 2007... and there is no indication that they will be met this year, either.
Starting with ‘strict supervision’, and even the hunters’ federation complaining that the police’s Administrative Law Enforcement Agency (ALE) is woefully under-resourced to do its job properly. But government has to date stolidly refused to invest any more resources in ALE; still less to replace it with a entity specialising in environmental law enforcement, as recommended by both Birdlife and FKNK.
As for the “small numbers” argument, the Court based its previous ruling on the bag count figures supplied by hunters. Lino Farrugia asserts that this was a reflection of the accuracy of his federation’s claims; but Temuge disagrees, arguing that the figures supplied to the Court were so low they were “a joke”.
Either way, such bag count figures will have to be resubmitted for all future hunting seasons; with potentially embarrassing results, if the ‘new’ figures turn out to be conspicuously different from those submitted previously.
“The government has prepared a terrible trap for itself,” Temuge told MaltaToday last month. “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...”
Meanwhile, in their assessment of the ECJ ruling, the hunters’ representatives were quick to seize on two paragraphs (62/3), which in turn were based exclusively on information supplied by Malta’s Attorney General Silvio Camilleri:
“It is not apparent from the documents in the case that the population of the two species of bird hunted is below a satisfactory level. It is apparent, in particular, from the IUCN Red List of Threatened Species that the species in question are listed in the ‘least concern’ category.” (62)
“Having regard to those very specific circumstances, hunting for quails and turtle doves during the autumn hunting season cannot be regarded as constituting, in Malta, another satisfactory solution, so that the condition that there be no other satisfactory solution, laid down in Article 9(1) of the Directive, should, in principle, be considered met.” (63)
By citing the IUCN Red List, the Court has clearly based its decision on the global (as opposed to local) conservation status of turtledove and quail... which also takes into account the breeding populations in other continents, including Asia.
However, the Birds Directive makes it clear that such decisions are to be based on “local distribution” (Article 7.1); and that member states are further obliged to safeguard “the protection requirements of these species in the geographical sea and land area where this Directive applies.” (Article 4.3).
This is the crux of the matter: for in European terms, neither quail nor turtledove is defined as “of least concern”. On the contrary: they are both classified as “species in decline”.
From this perspective, it is to say the least unclear why the ECJ admitted the documentation as evidence in the first place, or why the Commission’s legal representatives did not object in open court.
Either way, Malta’s hopes of avoiding additional infringement procedures now depend on the hunters themselves, who must convince the European Commission that they are ready and willing to abide by existing laws, as well as additional restrictions of the kind described above.
Barring any dramatic changes to the present scenario, this does not look very likely.
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