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Brussels, 31 January 2008

Nature protection: Commission takes Malta to court over spring hunting, closes Finnish case

The European Commission is bringing Malta before the European Court of Justice for allowing the hunting of two species of birds in spring, a key period of migration and breeding. In another case, the Commission is halting legal proceedings against Finland on spring hunting following changes in its legislation to ensure that hunting would not be permitted during this period in the future.

Commenting on the Commission’s action, Environment Commissioner Stavros Dimas said: “It is fundamental for the preservation of biodiversity in the European Union that laws on the hunting of wild birds are adhered to by all Member States. It is clear that there is no place in the European Union for the hunting of these birds during the breeding season.”

Spring hunting in Malta

The Commission is taking Malta to the European Court of Justice under Article 226 of the EC Treaty for failure to comply with EU legislation protecting wild birds. Under the Wild Birds Directive the killing of wild birds is banned, but some species may be hunted as long as this does not occur during the breeding or spring migration season.

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.

This matter was discussed during Malta’s accession negotiations where 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, and documents were formally exchanged during the Intergovernmental Conference on Malta’s accession to the European Union[1]. 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. Nevertheless, 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.

Moreover, in its most recent ruling on the issue of spring hunting, in a case against Finland dated 15 December 2005, (Case C-344/03; see below) the European Court of Justice 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.

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.

Finland bans spring hunting

The Commission is closing the spring hunting case against Finland following its decision not to allow spring hunting. In 2005 the European Court of Justice in case C-344/03 ruled that Finland had failed to fulfil its obligations under the Wild Birds Directive because the hunting of certain species in Finland[2] during spring was still allowed. In December 2007 Finland informed the Commission that legislation complying with the directive had been adopted. The Commission therefore considers the case closed.

In October 2007, the Commission closed another case, concerning spring hunting in Cyprus, after the Cypriot authorities agreed not to adopt new legislation permitting the practice.

Hunting rules at EU level

Hunting is regulated in the EU by the 1979 Wild Birds Directive[3]. Although the Directive contains a general prohibition on the killing of wild birds, it does allow certain species to be hunted provided this does not happen during breeding or migration. These closed periods are critical and allow wild birds to renew their numbers. Hunting periods are set at national levels, and vary according to species and geographical location.

Exceptionally, Member States may allow the capture or killing of birds covered by the Directive outside of the normal hunting season for a limited number of reasons, although such derogations are only applied when there is no alternative solution.
The Commission supports sustainable hunting, and a ground-breaking agreement on sustainable hunting was signed in 2004 by hunters and bird conservationists at EU level. For further details see:

Legal Process

Article 226 of the EC Treaty (the Treaty establishing the European Community) gives the 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 judgement 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 226 stage.

For rulings by the European Court of Justice see:

[1] CONF – M 110-02, 27 September 2002

[2] Eider (Somateria mollissima), golden-eye (Fuligula clangula), red-breasted merganser (Mergus serrator), goosander (Mergus merganser), velvet scoter (Melanitta fusca) and tufted duck (Aythya fuligula).

[3] Directive 79/409/EEC on the conservation of wild birds

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