Malta has failed to observe its obligations under EU law by adopting a derogation scheme allowing the live capture of seven species of wild finches, according to a ruling by the European Court of Justice (ECJ) today.

The judgment in Case 23/23 | Commission v Malta (Derogations for research purposes) refers to infringement proceedings initiated by the European Commission against Malta on the government’s support of the hunting lobby’s alleged research project that allowed bird trapping.

The ECJ ruled that Malta failed to fulfil the conditions required for the research derogation under Article 9(1)(b) of the Birds  Directive and also failed to demonstrate the absence of another satisfactory solution.

“The Court finds that by adopting a derogation allowing the capture of live individuals of 7 species of wild finches, the Republic of Malta has failed to fulfil its obligations under Directive 2009/147 on the conservation  of wild birds.”

In the European Union, wild finches are protected by the Birds Directive. The primary objective of the Directive is the preservation of all bird species diversity, forbidding the deliberate killing or capture of birds (Article 5) and the use of large-scale or non-selective methods to do so (Article 8).

When Malta joined the EU, the relative Accession Treaty provided for a transition period whereby Malta committed to gradually phase out bird trapping since such practice is prohibited under the Directive.

After successfully banning finch trapping, in 2014, Malta adopted the recreational derogation regime provided for under Article 9(1)(c) of the Directive to enable the trapping of seven species of wild finches as a recreational activity.

This occurred when the Labour Party came to power as a vote-grabbing exercise with the hunting and trapping lobby.

In 2018, the Court declared that this regime failed to meet the respective derogation conditions, namely the criterion relating to “small number”, and consequently, Malta repealed it.

In 2020, Malta adopted the Finches Project under Framework Regulations 2020, which provided for the live capture of the same seven species of wild finches. This time, however, under a different derogation – the derogation for purposes of research.

“The  Commission views this as simply a ‘cover-up’ to enable the continuation of the previous recreational regime, and for this reason, and among others, has initiated the present infringement action,” the ruling states.

The Court found that by adopting a derogation allowing the live capture of individuals of seven species of wild finches, “The Republic of Malta has failed to fulfil its obligations under Articles 5, 8(1) 9(1) of  Directive 2009/147 on the conservation of wild birds”.

The Court added that “The Finches Project does not establish a genuine research purpose and hence cannot be considered justified.”

Last March, The Shift reported that Minister Clint Camilleri and the government’s Wild Birds Regulation Unit (WBRU) refused to publish studies resulting from the finch trapping ‘research’ derogations for the last three years, fuelling suspicions it was a “smokescreen” to circumvent EU rules.

The Shift has also reported that the Maltese government spent more than €100,000 on a direct order for a Spanish legal expert to bolster its defence at the hearings.

Environmental NGO Birdlife Malta submitted a report to the ECJ claiming the ‘research’ was an “embarrassment to science.”

The organisation said the derogation was used as a “smokescreen” for tens of thousands of protected finches to be illegally taken into captivity across thousands of trapping sites.

Trappers were meant to capture and release live finches to inform studies on their migration patterns and numbers.

The ‘research’ trapping season was the second time Malta implemented a derogation to depart from the EU Birds Directive for trapping. Further derogations have been made to allow for spring hunting seasons.

In 2018, the European Court had already ruled that a previous derogation for trapping was unlawful.