Malta replies to Brussels

The government has sent its official reply to Brussels contesting the infringement procedure set in motion by the European Commission last July over spring hunting in 2004.

Sources close to the Commission said the reply was dated March 23. It is now being evaluated by Commission officials. In its letter of reply, seen by The Times, the government refutes the Commission's assertion that Malta failed to fulfill its obligations under the EU Birds Directive during the first 22 days of its accession into the EU, in May of 2004. "Malta believes that it has acted in line with EU law with respect to the application of the derogation for spring hunting under article 9 of the Birds Directive. It has also acted fully within the spirit of the accession negotiations," the letter, signed by Foreign Minister Michael Frendo, states.

The government cites five main factors to illustrate Malta's specific hunting situation and which, according to the government, justifies the use of a derogation permitting hunting during spring. These are that:

• Both the quail and the turtle dove species migrate on a broad front right across the Mediterranean. The Maltese islands do not receive more than a small representative cross section of this broad front migration.

• The actual numbers of birds involved in migration over the Maltese islands fluctuates greatly from year to year and from season to season since the number is dependent on the vagaries of weather.

• The migratory patterns of both hunted species in autumn occur mainly in late August and September. Due to fine weather conditions prevailing at this time most birds overshoot the centre of the Mediterranean. This is the main reason why both species appear in smaller numbers in autumn compared to spring.

• There are no resident game birds in Malta and the bird population that migrates over the island is not known to reproduce on the Maltese islands.

• Due to Malta's high density built-up areas, the islands are not an ideal staging post for migration.

Last July, the European Commission started legal action claiming that the granting by Malta of a derogation for the hunting of turtle dove and quails between May 1 and 22, 2004 was not in accordance with the strict conditions governing this derogation. This was because, according to the Commission, "a satisfactory solution to spring hunting existed during the autumn hunting season".

In its reply, however, the government argues to the contrary and backs up its arguments with data pertaining to the alleged infringement year.

"The number of birds caught during the autumn season of 2004 (4,260 quails and 4,170 turtle doves) represents one bird for every three hunters," the government claims.

Emphasising the need for more accurate data on migratory flows, the government also informed Brussels that it has just commissioned a scientific study.

"Circumstances have dictated the need to acquire further objective scientific data on the overall actual figures of the bird population of migratory birds in order to establish the ratio of the number of the two species hunted when compared to the two migratory flows of the same two species. In this context, the Maltese government has approved the carrying out of a scientific study of the migration over the Maltese islands of turtle dove and quail."

Apart from the technical response, the government also refers to the negotiations on hunting that took place prior to Malta's accession to the EU and indirectly accuses Brussels of bad faith.

The government argues that, in stating in its accession negotiations that due to its unique biogeographical circumstances, spring is the main hunting season in the Maltese islands, Malta was following the accepted definition of the term "no other satisfactory solution".

This interpretation, it maintains, supports the conclusion that the taking of the two species in question in spring is justified by the lack of sufficient numbers of the two species in autumn. "Far from contesting this interpretation, the Commission and the member states actively encouraged the Maltese government to follow this line emphasising at various levels and at various stages over the two-year period that the issue was a question of absolute numbers."

The government also referred to a judgment handed down by the European Court in 2005, which had ruled against Finland when that country was making a similar bid to retain spring hunting.

According to sources, that judgment was the reason for the Commission's change of position.

"Whilst the government is aware that the Commission considers itself constrained by the decision of the European Court of Justice (Commission vs Finland), the facts of which do not necessarily find a parallel in Malta's case, it recalls that, while the decision on which the Commission is relying was delivered on December 15, 2005, the Commission has initiated proceedings in relation to the derogation utilised by Malta for the period May 1 to 22, 2004."

A few weeks ago, the European Commission also decided to send a supplementary letter of formal notice to the government over the issue, widening the scope of the infringement to cover similar derogations granted by Malta for the spring hunting seasons of 2005, 2006 and 2007.

Malta was given until April 21 to send a reply to this second letter.

The Commission will evaluate the government's replies and will issue what is known as a reasoned opinion if it does not agree. The next step would be taking Malta to the European Court, a path the government has said it is willing to go down.