Malta will abide by EU court's decision

The government yesterday said it would not permit hunting to take place this spring if the European Court of Justice (ECJ) upholds a request filed by the European Commission.

The Commission has asked the court to issue a temporary order barring the Maltese authorities from allowing spring hunting until a case initiated by the EU executive against Malta is decided.

Reacting immediately to an official statement issued in Brussels by the Commission yesterday, the government made it clear that it will respect any decision taken by the ECJ. It stressed that it will not be paying any fines over this question (see box on page 4 for procedure).

"The Maltese government agrees that this issue should be resolved by the European Court of Justice once and for all," the government said in a statement.

"While making its case according to the law, the government declares from now that it will abide by any decision taken by the court."

The European Commission yesterday officially announced that it has decided to take Malta to court over spring hunting following various written warnings sent to the island since June 2006.

"This legal action by the Commission follows a final written warning to Malta in October 2007 on the hunting of quails (Coturnix coturnix) and turtle doves (Streptopelia turtur) during spring.

"The hunting of these migratory birds takes place during their return from Africa to breeding grounds in Europe, before they have had a chance to reproduce. The impact on bird numbers is, therefore, more significant than it would be in autumn or winter, after the breeding season," the Commission said.

The Commission added that in order to make sure that hunting is not permitted even from the coming spring, it had decided to apply for interim measures to be issued immediately by the ECJ.

"In its final written warning in October 2007, the Commission called on Malta not to permit spring hunting in 2008. Responding in January 2008, Malta did not give a firm commitment in this regard. As a result, the Commission will refer the case to the European Court of Justice.

"Given that the spring hunting season is imminent, the Commission will also apply to the Court for interim measures, asking Malta not to allow spring hunting in 2008."

The decision by the ECJ to issue temporary measures is expected be taken in the coming weeks, well in time before the next spring hunting season is scheduled to start, around March 20.

A source at the ECJ yesterday said the court will now assign a judge to this case and the President of the court will decide what procedure to use in order to hear the preliminary submissions and decide whether to issue interim measures.

The source made it clear that it is very likely, almost certain, that the ECJ will uphold the Commission's request and issue temporary measures.

In its statement, the EU executive explained in detail what brought the issue with Malta to a head including a particular judgment given by the ECJ in 2005 which changed the scenario on how derogations under the Birds Directive are to be applied.

The Commission again confirmed that spring hunting was discussed during Malta's accession negotiations and that Malta maintained that in allowing the hunting of quail and turtle dove in spring it was acting in accordance with the possibility for limited derogation as foreseen under Article 9 of the directive. Documents in this regard were formally exchanged during the Intergovernmental Conference on Malta's accession to the European Union.

"Following a request from Malta during these negotiations, the Commission had confirmed that a derogation would be possible if the strict conditions set out in the Wild Birds Directive were met," it said.

However, the Commission said that when checks were made, particularly using data supplied by hunters, it resulted that Malta's derogation was not justified.

"In the Commission's opinion, the circumstances that would allow such a derogation, which include the absence of alternative solutions, are not present in this case, as can be borne out by the data (Carnet de Chasse figures) provided by the Maltese hunters themselves for the autumn hunting season."

The Commission said that a court ruling at the end of 2005 involving a similar case to Malta also changed the scenario.

Referring to a case against Finland over spring hunting on a Finnish island, dated December 15, 2005 (Case C-344/03) the ECJ concluded that in cases where birds were present at other periods, even where those numbers were smaller than in spring, another satisfactory solution was available and a derogation from the Birds Directive to permit spring hunting was not possible.

"In this respect, the facts of the Finnish case find a parallel in the situation in Malta, where the Commission believes that alternative solutions to spring hunting do exist, in this case the possibility to hunt the two species in the autumn."

Meanwhile, Birdlife International and Birdlife Malta, who had been lobbying for yesterday's decision since Malta's accession to the EU, welcomed the move and appealed to both Maltese political parties to declare that they won't be permitting hunting to take place during spring ever again.

"Unfortunately, the Maltese government has missed many opportunities in the past to solve this case and to avoid European-wide embarrassment for the country," stated Konstantin Kreiser, EU policy manager at BirdLife in Brussels.

Referring to the upcoming general election in Malta and the possible political impact of this decision, Joseph Mangion, president of BirdLife Malta said that both major political parties should make their positions clear.

"Both Prime Minister Lawrence Gonzi and the Leader of the Opposition Alfred Sant should declare now that they will not open a spring hunting season again. The overwhelming majority of the Maltese people believe that spring hunting should end, and that the government needs to stop this European-wide embarrassment for our country."

The EU's legal process

Article 226 of the EC Treaty gives the European Commission powers to take legal action against a member state that is not respecting its obligations.

If the Commission considers that there may be an infringement of EU law that warrants the opening of an infringement procedure, it addresses a Letter of Formal Notice (first written warning) to the member state concerned, requesting it to submit its observations by a specified date, usually two months.

In the light of the reply or absence of a reply from the member state concerned, the Commission may decide to address a Reasoned Opinion (second and final written warning) to the member state. This clearly and definitively sets out the reasons why it considers there to have been an infringement of EU law and calls upon the member state to comply within a specified period, normally two months.

If the member state fails to comply with the Reasoned Opinion, the Commission may decide to bring the case before the European Court of Justice.

Where the Court of Justice finds that the Treaty has been infringed, the offending member state is required to take the measures necessary to conform.

Article 228 of the Treaty gives the Commission power to act against a member state that does not comply with a previous judgment of the European Court of Justice, again by issuing a first written warning (Letter of Formal Notice) and then a second and final written warning (Reasoned Opinion).

The article then allows the Commission to ask the Court to impose a financial penalty on the member state concerned. In the case concerning spring hunting in Malta, proceedings are still at the Article 226 stage.