Legal advisers will be examining the judgment given by the European Court of Justice yesterday to decide whether there is any possibility for "very limited hunting under strict controls" to be allowed in spring, the government said last night.
The ECJ ruled that Malta breached EU rules when it allowed spring hunting between 2004 and 2007.
"The decision does not mean that spring hunting has been banned for ever. The court could not remove Malta's right to apply for a derogation in future and, in view of new data, which we already have, and with political will, we can get a derogation, although it will be more difficult," the secretary of the hunters' federation, Lino Farrugia, said in reaction to the judgment.
The government said that whereas the court made it clear that the way the derogation was applied in Malta was not in line with EU law, the judgment left space for a proportionate use of the derogation for spring hunting in Malta.
It also noted that the court conceded Malta's arguments that, having regard to the country's specific circumstances, the autumn hunting season could not be considered as a satisfactory solution.
"Nevertheless, this finding, far from opening up, without limit, the possibility of authorising hunting in spring, does so only so far as it is strictly necessary and provided that the other objectives pursued by the (Birds) directive, in particular protection of the population of the species concerned, are not jeopardised," the government added.
It recalled that, over the past few years, the government had introduced a number of restrictive measures on hunting in spring in an effort to bring the practice within the spirit of the Birds Directive. "However, these limited measures were always met with opposition from hunters' organisations."
In welcoming the ruling, the European Commission said the "judgment clarifies that spring hunting may only be permitted under certain strict conditions, strictly proportionate with the aim of conserving bird species.
"In reaching its judgment of today, the court has clarified that the spring hunting season in Malta, which resulted in a mortality rate for that period some three times higher (about 15,000 birds) for quails and eight times higher (about 32,000 birds killed) for turtle doves than for the autumn hunting season, did not constitute an adequate solution that was strictly proportionate to the aim of conserving bird species," the Commission said. The five judges presiding over the Luxembourg-based court said Malta had broken EU legislation when allowing hunting to take place in the first four seasons following EU accession (2004-2007) as it was not justified in invoking a derogation allowed under the Birds Directive to justify the hunting of turtle doves and quails in spring.
The ECJ acknowledged that autumn was not strictly an alternative to spring hunting because the number of birds that could be hunted was restricted and not comparable to spring. However, it noted, birds hunted in spring were disproportionate when compared to autumn and, thus, Malta did not meet the strict conditions tied to the derogation allowed under the Birds Directive.
"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," the court argued.
BirdLife International and BirdLife Malta welcomed the decision, saying the ruling showed that the practice jeopardised the conservation of the species. "As a consequence, BirdLife concludes spring hunting has to end permanently. Hunting in autumn can continue for these (quails and turtle doves) and 30 other species in Malta, under certain conditions laid out in the EU Birds Directive."
In its judgment, the ECJ also dealt with the argument made by Malta that during the accession negotiations on the subject the Commission had indicated to the island that it would be able to continue allowing spring hunting.
Although the ECJ steered clear of entering into this hotly-debated area and on which the government had based its promises to hunters before accession, the court said the issue did not have any effect on this case. "Apart from the fact that this (an assurance by the Commission) is not apparent from the documents before the court, it is, in any event, irrelevant to the assessment of compliance with the condition that there be no other satisfactory solution within the meaning of article 9(1) of the directive."
Gunter Verheugen, who, as Enlargement Commissioner, had conducted the accession negotiations with Malta, had denied the EU had given any assurances.