Brussels, 25 April 2008
The European Court of Justice yesterday gave its decision in a case concerning the spring hunting of birds in Malta. In response to the Commission's request for interim measures, the Court concluded that the Maltese authorities should not adopt legislation permitting the hunting of birds during the spring period in 2008.
Commenting on the Court's decision, Environment Commissioner Stavros Dimas said: “The decision of the Court emphasises the importance of protecting the common natural heritage of the EU in preventing the hunting of birds during this period. The order applies to the spring period in 2008 but we consider that it sets a clear precedent in relation to spring hunting in subsequent years also in other Member States.”
It is third time that the Commission has successfully asked the Court for interim measures (the previous cases concerned spring hunting in the region of Liguria in Italy and a road-building project in the Rospuda valley) in cases where it considers that irrevocable and significant damage will occur to the environment, if no steps are taken.
Background: Spring hunting in Malta
The Commission took 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 can be hunted as long as it does not occur during the breeding or spring migration season.
This legal action by the Commission followed 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 issue of a derogation was the subject of pre-accession discussions with Malta, with the Commission confirming that a derogation would be possible where the strict conditions set out in the Wild Birds Directive were met. In its most recent ruling on the issue of spring hunting, the European Court of Justice in a case against Finland (Case C-344/03; see below) dated 15 December 2005, 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 that respect, the facts of the Finnish case to find a parallel in the situation in Malta, where the Commission believes that alternative solutions to spring hunting 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 for 2008. Responding in January 2008, Malta did not commit to stopping spring hunting. As a result, in January 2008 the Commission referred the case to the European Court of Justice. Given that the spring hunting season is imminent, the Commission also applied to the Court for interim measures, asking Malta not to allow spring hunting in 2008. Whilst the Court has given its decision on the application for interim measures, the main case, concerning the principle of spring hunting in general has still to be heard by the Court.
Hunting rules at EU level
Hunting is regulated in the EU by the 1979 Wild Birds Directive. 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
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.
 Directive 79/409/EEC on the conservation of wild birds