Hi Folks,
I have just received the following giving details of the EU Bird Directive which of course applies to all Europe and not just Malta.
Sorry it is rather long, I tried to attach as a file but I'm useless and it didn't work.
The EU Birds Directive
From John Azzopardi
http://217.145.4.56/ind/news.asp?newsitemid=21489
A lot has been written and spoken about certain dispensations from the EU
Birds Directive as it applies to Malta. Most of what has been stated is a
misconception. The pity is that the wrong information keeps being repeated
ad nausea by politicians, journalists, Government officials and the general
public.
The facts of the matter are:
The current derogation from the requirements of the Birds Directive with
respect to the ban on spring hunting was NOT part of the pre-accession
negotiations with Malta. It is a unilateral, and unlawful, decision by the
Maltese Government.
The only agreement negotiated by the Maltese Government in the pre-accession
talks was a temporary transition period to enable the complete phasing out
of finch trapping by 31 December 2008. This concession is not negotiable and
will not be extended.
The Birds Directive has three main levels of protection:
The over-arching rule is the total protection of all species of naturally
occurring birds in the wild state in the European territory of the member
states, including their eggs, nests and habitats.
In addition, it imposes special conservation measures concerning the habitat
of a number of protected bird species nominated in Annex I. These are
species that are considered endangered or vulnerable to specific habitat
changes, rare because of small populations or restricted distribution, or
those requiring particular attention for reasons of the specific nature of
their habitat. A number of birds that breed in the Maltese Islands are
included in Annex I, among them the Cory’s Shearwater, the Yelkouan
Shearwater, the European Storm Petrel and the Short-toed Lark. The Birds
Directive demands that the habitat in which these species breed and live be
fully protected in order to ensure their survival.
Finally, it ensures that birds that may be hunted are afforded full
protection in the breeding season in spring. These birds are listed in Annex
II.
As far as Malta is concerned, the main stumbling block concerns the huntable
species of Annex II. The general principle underscoring Article 7 is that
member states must ensure that hunting is compatible with the populations of
the species concerned at a satisfactory level and that the practice does not
jeopardise conservation efforts in their area of distribution. This clearly
indicates that hunters do not have a carte blanche to hunt the birds in
Annex II as they like. It clearly implies that the practice of hunting must
not represent a significant threat to efforts for conservation of both
huntable as well as non-huntable species. This provision needs to be
assessed in the light of the nature and geographical scope of the
“conservation efforts” in question, as these may vary from a local to an
international level. If the species are subject to excessive hunting along
their migration route it may impinge on conservation efforts elsewhere,
including those outside the European Union.
Article 7 (4) obliges member states to ensure that hunting complies with the
principles of wise use. This clearly implies sustainable consumptive use,
with an emphasis on maintaining populations of species at favourable
conservation status.
Both the quail and the turtle dove, which are currently hunted in Malta,
have an unfavourable conservation status in Europe. The issue of allowing
the continuation of hunting of species with an unfavourable status was
discussed in section 2.7 of the European Parliament Committee on the
Environment, Public Health and Consumer Protection. It was stated that
“Where a species is declining, hunting cannot by definition be sustainable
unless it forms part of a properly running management plan that also
involves habitat conservation and other measures that will slow and
ultimately reverse the decline.” Both quail and turtle dove are declining
species, and therefore by definition their hunting in Malta is not
sustainable, nor is it part of a management plan to reverse the decline.
Furthermore, Article 7 (4) lays down a number of key principles relating to
the fixing of hunting seasons, the objective of which is to ensure that
hunting does not take place during the most vulnerable periods of the annual
cycle of huntable species. It is incumbent upon member states to ensure that
the species to which hunting laws apply are not hunted during the rearing
season or during the various stages of reproduction. In the case of
migratory species, in particular the species to which hunting regulations
apply, member states should see that these are not hunted during their
period of reproduction or during their return to their rearing grounds.
In an unequivocal statement, the European Court observed1, “the provisions
of Directives must be implemented with unquestionable binding force, and
specificity, precision and clarity necessary to satisfy the requirements of
legal certainty.” In another case2, the Court also noted “mere
administrative practices, which by their nature may be changed at will by
the authorities, cannot be regarded as constituting proper compliance with
the obligation on Member States to which a Directive is addressed, pursuant
to Article 189 of the Treaty.”
This case law clearly demonstrates that member states need to fully and
clearly transpose the relevant provisions of Article 7.
The hunting of quail and turtle dove by Maltese hunters during the spring
migration is clearly in violation of the provisions of Article 7. Maltese
authorities continue to insist that the hunting of these birds can continue
because of an allegedly negotiated derogation.
The derogation myth
Article 9 (1) of the Birds Directive is crystal clear about the conditions3
that must exist for a derogation to apply.
The over-arching condition is that there must be no other satisfactory
solution.
One of the reasons listed exhaustively in Article 9(1) (a), (b) and (c) must
exist.
These conditions are mutually supportive. If it can be proven that there is
no satisfactory solution, then the conditions in Article 9(1) (a), (b) and
(c) kick in. These conditions are exhaustive and there are no other valid
ones.
No other satisfactory solution
In the classic Court Case C-10/96 the Advocate General observed: “A
derogation under this provision can only be a last resort.” It is therefore
clear that it cannot be argued that there is no other satisfactory solution
because it would cause greater inconvenience to or compel a change in
behaviour by the beneficiaries of the derogation. The Advocate General
remarks: “It is in the nature of environmental protection that certain
categories of persons may be required to amend their behaviour in pursuit of
a general good; in this case, the abolition, as a consequence of the
Directive, of the capture of birds for recreational purposes. That such
activities may be ancestral or partake of an historical and cultural
tradition does not suffice to justify a derogation from the Directive.”
The main thrust of the Malta derogation was the allegedly “traditional”
nature of the hunting activity. It is clear that such an excuse is not
justifiable under the Birds Directive or the case law.
Judicious use
A basic question arises as to whether, as a matter of law and fact, this
condition can ever be satisfied in relation to hunting, especially proposed
extensions of hunting seasons. In the case of recreational hunting, this
question is inextricably linked to the question of whether such hunting can
be considered “judicious use” for the purpose of Article 9(1)(c). In Case
C-10/96 quoted above, the Court provides an important clarification, noting
that the condition of judicious use “cannot be considered to have been met
when the hunting period under the derogation coincides, without need, with
periods in such the Directive aims to provide particular protection. There
would be no such need if the sole purpose of the derogation authorising
hunting were to extend the hunting periods for certain species of birds in
territories which they already frequent during hunting periods fixed in
accordance with Article 7 of the Directive.”
This legal principle is given further strength in Case C-182/02 of 2003. The
judgement from this case makes it clear that derogation for the sole purpose
of extending the hunting seasons would be unlawful. Where there is the
opportunity to hunt the huntable species during the post reproduction
migration (autumn), there can be no question that hunting of the species
during the prenuptial migration (spring) is merely an extension of the
hunting season and is therefore unlawful. The impact of taking of wild birds
in autumn, when there is a surplus of young birds, will be very different
from taking wild birds in spring when there is a much higher proportion of
mature birds in breeding condition.
It is evident from the same judgement that recreational hunting does not
automatically constitute a judicious use. The Court observed: “the use of
birds for recreational hunting cannot, in any event, be considered judicious
and, accordingly, acceptable for the purposes of the 11th recital in the
preamble to the Directive.”
This Directive condition, together with supporting case law, rules out the
possibility of having a legal spring hunting season in Malta. It is plainly
obvious that the only reason for allowing the hunting of quail and turtle
dove in spring is to extend the hunting season, because both these birds may
be hunted in autumn. Therefore, it is clearly unlawful to allow spring
hunting for these species. Even if spring were the only season during which
these two species appeared in the Maltese Islands, it would still be against
the Birds Directive to allow them to be hunted because the only reason for
such licence would be recreational hunting. Recreational hunting is not
considered a judicious use and is therefore prohibited. Allowing spring
hunting goes directly against the very spirit of the Birds Directive.
Unfavourable conservation status
Derogations should not be granted for species or populations with
unfavourable conservation status. The judgement in Court Case C-182/02
stated that hunting derogation will not be justified if it does not ensure
the maintenance of the population of the species at a satisfactory level.
Such an objective cannot be met if the species has an unfavourable
conservation status. Therefore, the need to ensure the maintenance of the
population of the species at a satisfactory level becomes a pre-condition
for granting derogations.
The use of derogations must not undermine the objectives of the Bird
Directive. Article 9(4) of the Bird Directive also implies that the use of
derogations must not be incompatible with the objectives of the Directive.
Both the quail and the turtle dove have an unfavourable conservation status
and therefore spring hunting cannot be permitted under the Birds Directive.
The Birds Directive does not allow derogation from its requirements merely
for recreational hunting, even if the activity is claimed to be traditional
or ancestral. Derogation is permitted only in the interests of public health
and safety; in the interests of air safety; to prevent damage to crops,
livestock, forests or water; for the protection of flora and fauna and for
the purpose of research, teaching or re-introduction. Clearly, none of these
motives apply in the case of quail and turtle dove hunting in Malta.
Therefore, there can be no question that spring hunting in Malta is unlawful
and goes directly against the Birds Directive.
http://217.145.4.56/ind/news.asp?newsitemid=21489
Ann
I have just received the following giving details of the EU Bird Directive which of course applies to all Europe and not just Malta.
Sorry it is rather long, I tried to attach as a file but I'm useless and it didn't work.
The EU Birds Directive
From John Azzopardi
http://217.145.4.56/ind/news.asp?newsitemid=21489
A lot has been written and spoken about certain dispensations from the EU
Birds Directive as it applies to Malta. Most of what has been stated is a
misconception. The pity is that the wrong information keeps being repeated
ad nausea by politicians, journalists, Government officials and the general
public.
The facts of the matter are:
The current derogation from the requirements of the Birds Directive with
respect to the ban on spring hunting was NOT part of the pre-accession
negotiations with Malta. It is a unilateral, and unlawful, decision by the
Maltese Government.
The only agreement negotiated by the Maltese Government in the pre-accession
talks was a temporary transition period to enable the complete phasing out
of finch trapping by 31 December 2008. This concession is not negotiable and
will not be extended.
The Birds Directive has three main levels of protection:
The over-arching rule is the total protection of all species of naturally
occurring birds in the wild state in the European territory of the member
states, including their eggs, nests and habitats.
In addition, it imposes special conservation measures concerning the habitat
of a number of protected bird species nominated in Annex I. These are
species that are considered endangered or vulnerable to specific habitat
changes, rare because of small populations or restricted distribution, or
those requiring particular attention for reasons of the specific nature of
their habitat. A number of birds that breed in the Maltese Islands are
included in Annex I, among them the Cory’s Shearwater, the Yelkouan
Shearwater, the European Storm Petrel and the Short-toed Lark. The Birds
Directive demands that the habitat in which these species breed and live be
fully protected in order to ensure their survival.
Finally, it ensures that birds that may be hunted are afforded full
protection in the breeding season in spring. These birds are listed in Annex
II.
As far as Malta is concerned, the main stumbling block concerns the huntable
species of Annex II. The general principle underscoring Article 7 is that
member states must ensure that hunting is compatible with the populations of
the species concerned at a satisfactory level and that the practice does not
jeopardise conservation efforts in their area of distribution. This clearly
indicates that hunters do not have a carte blanche to hunt the birds in
Annex II as they like. It clearly implies that the practice of hunting must
not represent a significant threat to efforts for conservation of both
huntable as well as non-huntable species. This provision needs to be
assessed in the light of the nature and geographical scope of the
“conservation efforts” in question, as these may vary from a local to an
international level. If the species are subject to excessive hunting along
their migration route it may impinge on conservation efforts elsewhere,
including those outside the European Union.
Article 7 (4) obliges member states to ensure that hunting complies with the
principles of wise use. This clearly implies sustainable consumptive use,
with an emphasis on maintaining populations of species at favourable
conservation status.
Both the quail and the turtle dove, which are currently hunted in Malta,
have an unfavourable conservation status in Europe. The issue of allowing
the continuation of hunting of species with an unfavourable status was
discussed in section 2.7 of the European Parliament Committee on the
Environment, Public Health and Consumer Protection. It was stated that
“Where a species is declining, hunting cannot by definition be sustainable
unless it forms part of a properly running management plan that also
involves habitat conservation and other measures that will slow and
ultimately reverse the decline.” Both quail and turtle dove are declining
species, and therefore by definition their hunting in Malta is not
sustainable, nor is it part of a management plan to reverse the decline.
Furthermore, Article 7 (4) lays down a number of key principles relating to
the fixing of hunting seasons, the objective of which is to ensure that
hunting does not take place during the most vulnerable periods of the annual
cycle of huntable species. It is incumbent upon member states to ensure that
the species to which hunting laws apply are not hunted during the rearing
season or during the various stages of reproduction. In the case of
migratory species, in particular the species to which hunting regulations
apply, member states should see that these are not hunted during their
period of reproduction or during their return to their rearing grounds.
In an unequivocal statement, the European Court observed1, “the provisions
of Directives must be implemented with unquestionable binding force, and
specificity, precision and clarity necessary to satisfy the requirements of
legal certainty.” In another case2, the Court also noted “mere
administrative practices, which by their nature may be changed at will by
the authorities, cannot be regarded as constituting proper compliance with
the obligation on Member States to which a Directive is addressed, pursuant
to Article 189 of the Treaty.”
This case law clearly demonstrates that member states need to fully and
clearly transpose the relevant provisions of Article 7.
The hunting of quail and turtle dove by Maltese hunters during the spring
migration is clearly in violation of the provisions of Article 7. Maltese
authorities continue to insist that the hunting of these birds can continue
because of an allegedly negotiated derogation.
The derogation myth
Article 9 (1) of the Birds Directive is crystal clear about the conditions3
that must exist for a derogation to apply.
The over-arching condition is that there must be no other satisfactory
solution.
One of the reasons listed exhaustively in Article 9(1) (a), (b) and (c) must
exist.
These conditions are mutually supportive. If it can be proven that there is
no satisfactory solution, then the conditions in Article 9(1) (a), (b) and
(c) kick in. These conditions are exhaustive and there are no other valid
ones.
No other satisfactory solution
In the classic Court Case C-10/96 the Advocate General observed: “A
derogation under this provision can only be a last resort.” It is therefore
clear that it cannot be argued that there is no other satisfactory solution
because it would cause greater inconvenience to or compel a change in
behaviour by the beneficiaries of the derogation. The Advocate General
remarks: “It is in the nature of environmental protection that certain
categories of persons may be required to amend their behaviour in pursuit of
a general good; in this case, the abolition, as a consequence of the
Directive, of the capture of birds for recreational purposes. That such
activities may be ancestral or partake of an historical and cultural
tradition does not suffice to justify a derogation from the Directive.”
The main thrust of the Malta derogation was the allegedly “traditional”
nature of the hunting activity. It is clear that such an excuse is not
justifiable under the Birds Directive or the case law.
Judicious use
A basic question arises as to whether, as a matter of law and fact, this
condition can ever be satisfied in relation to hunting, especially proposed
extensions of hunting seasons. In the case of recreational hunting, this
question is inextricably linked to the question of whether such hunting can
be considered “judicious use” for the purpose of Article 9(1)(c). In Case
C-10/96 quoted above, the Court provides an important clarification, noting
that the condition of judicious use “cannot be considered to have been met
when the hunting period under the derogation coincides, without need, with
periods in such the Directive aims to provide particular protection. There
would be no such need if the sole purpose of the derogation authorising
hunting were to extend the hunting periods for certain species of birds in
territories which they already frequent during hunting periods fixed in
accordance with Article 7 of the Directive.”
This legal principle is given further strength in Case C-182/02 of 2003. The
judgement from this case makes it clear that derogation for the sole purpose
of extending the hunting seasons would be unlawful. Where there is the
opportunity to hunt the huntable species during the post reproduction
migration (autumn), there can be no question that hunting of the species
during the prenuptial migration (spring) is merely an extension of the
hunting season and is therefore unlawful. The impact of taking of wild birds
in autumn, when there is a surplus of young birds, will be very different
from taking wild birds in spring when there is a much higher proportion of
mature birds in breeding condition.
It is evident from the same judgement that recreational hunting does not
automatically constitute a judicious use. The Court observed: “the use of
birds for recreational hunting cannot, in any event, be considered judicious
and, accordingly, acceptable for the purposes of the 11th recital in the
preamble to the Directive.”
This Directive condition, together with supporting case law, rules out the
possibility of having a legal spring hunting season in Malta. It is plainly
obvious that the only reason for allowing the hunting of quail and turtle
dove in spring is to extend the hunting season, because both these birds may
be hunted in autumn. Therefore, it is clearly unlawful to allow spring
hunting for these species. Even if spring were the only season during which
these two species appeared in the Maltese Islands, it would still be against
the Birds Directive to allow them to be hunted because the only reason for
such licence would be recreational hunting. Recreational hunting is not
considered a judicious use and is therefore prohibited. Allowing spring
hunting goes directly against the very spirit of the Birds Directive.
Unfavourable conservation status
Derogations should not be granted for species or populations with
unfavourable conservation status. The judgement in Court Case C-182/02
stated that hunting derogation will not be justified if it does not ensure
the maintenance of the population of the species at a satisfactory level.
Such an objective cannot be met if the species has an unfavourable
conservation status. Therefore, the need to ensure the maintenance of the
population of the species at a satisfactory level becomes a pre-condition
for granting derogations.
The use of derogations must not undermine the objectives of the Bird
Directive. Article 9(4) of the Bird Directive also implies that the use of
derogations must not be incompatible with the objectives of the Directive.
Both the quail and the turtle dove have an unfavourable conservation status
and therefore spring hunting cannot be permitted under the Birds Directive.
The Birds Directive does not allow derogation from its requirements merely
for recreational hunting, even if the activity is claimed to be traditional
or ancestral. Derogation is permitted only in the interests of public health
and safety; in the interests of air safety; to prevent damage to crops,
livestock, forests or water; for the protection of flora and fauna and for
the purpose of research, teaching or re-introduction. Clearly, none of these
motives apply in the case of quail and turtle dove hunting in Malta.
Therefore, there can be no question that spring hunting in Malta is unlawful
and goes directly against the Birds Directive.
http://217.145.4.56/ind/news.asp?newsitemid=21489
Ann
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