Already back in the 1970s, Europe's leaders saw the need for a comprehensive system for bird protection - at the European level in recognition that birds migrate freely across borders and are a valuable part of our shared natural heritage. The result was the Wild Birds Directive, which was adopted in 1979. It is the first major European nature conservation law and it aims to protect all European wild birds and their habitats.
What does the Birds Directive do?
The Birds Directive has created a far-reaching protection framework for all of Europe's wild birds, identifying 194 species and sub-species (listed in Annex I) among them as particularly threatened and in need of special conservation measures. There are a number of components to this scheme, which Member States have to transpose and enforce through their national legislative systems:
Member States are required to classify Special Protection Areas (SPAs) for the species listed in Annex I and all migratory bird species plus wetlands of international importance (“Ramsar sites”). The classification of an area as a SPA includes these sites in the Natura 2000 network (established by the “Habitats Directive”) and gives it a high level of protection from potentially damaging developments. In Natura 2000 sites, human activities can continue as long as they don’t harm their conservation objectives. Natura 2000 sites are eligible for a wider variety of EU funding (including from Structural, Rural Development of LIFE+ funds)
The Directive regulates the use of wild birds (including hunting and trading). It particular it establishes rules that limit the species that can be hunted (listed in Annex II) and the periods during which these can be hunted in order to protect them during periods of their greatest vulnerability, such as the return migration to the nesting areas, reproduction and the raising of chicks. There are also rules defining which hunting methods are banned (e.g. non-selective hunting and trapping).
Derogations from the provisions of the Birds Directive
Derogations from several provisions of the Birds Directive can be applied by any Member State given certain conditions are met. These conditions are set out in Art.9 of the Birds Directive, and the most important is the absence of any other satisfactory solution. Derogations can be applied for example in the interest of public health and safety (Art.9(1)a), for scientific, educational and conservation purposes (Art.9(1)b) or in a very strictly regulated way for other “judicious use” (Art.9(1)c).
For hunting derogations in Malta Art.9(1)c is relevant. Apart from the “absence of an alternative solution” Malta would need for example to meet the criteria of “small numbers” of killed birds, of “strictly supervised” and well defined conditions and of the activity being carried out on a “selective basis”.
Member States have to transpose and follow the provisions of Art.9 in their national legislation. Malta transposed it after a big delay in 2006. Member States have to report annually to the European Commission about any applied derogation and explain in detail how the conditions are met. If the Commission doesn’t see these conditions met it can prohibit the further use of the derogation, if needed by applying to the European Court of Justice.
In advance of EU accession, did Malta negotiate a derogation or transition period on spring hunting and trapping of Turtle Doves and Common Quails?
No. First of all, a derogation under Art.9 of the Birds Directive (see above) cannot be negotiated in advance. It can be applied by any Member State complying with the provisions of Art.9. The MemberState needs to report to the Commission about this, and in cases where the European Commission disagrees about the fulfillment of the conditions, it can start legal infringement procedures against the country. This happened in the case of Malta.
So what did the government negotiate with the EU?
Some Member States negotiated in advance of their EU accession the so-called “transition periods”, a period during which they do not need to comply with all EU laws, but during which they are “phasing out” practices that are banned by the EU gradually. Malta negotiated such a transition period for the trapping of several species of finch, which has to end by 2008. No such transition period was negotiated for spring hunting or trapping for Turtle Dove and Quail. Even the trapping of finch is not possible during spring.
Can Malta apply a derogation for spring hunting & trapping of Turtle Dove and Quail?
No. Because;
Malta does not meet the condition of Art.9 (1) c of “strictly supervised conditions” (i.e. there are no systems in place to limit and supervise the number of birds killed, as well as methods, time and place of the activity). Moreover there are a mere 24 ALE officers in Malta and 3 officers in Gozo to control the activities of more than 16,000 hunters and trappers.
Malta does not meet the condition of Art.9 (1) c of “small numbers” (the actual number of hunted individuals is not known due to a lack of supervision, the very low numbers provided in the report provided by Malta seem not reflect the reality, and even these exceed the small numbers threshold).
Malta does not meet the conditions of Art.9 (2) as the report provided to the Commission does not specify sufficiently the conditions of risk, the circumstances of time and place, the institutional and legislative system in place as well as the current practice for controlling this activity.
For the full version of the Birds Directive click here.