In no unclear terms, finch trapping is illegal under EU law. Directive 2009/147/EC of the European Parliament and of the Council of November 30, 2009, on the conservation of wild birds (OJ 2010 L 20, p. 7), provides that member states must take the requisite measures to establish a general protection system for several bird species.

Nevertheless, member states may derogate from that obligation where there is no other satisfactory solution, to permit, under strictly supervised conditions and on a selective basis, the capture, keeping or other judicious use of certain birds in small numbers.

When it joined the EU in 2004, Malta became obliged to abide by the EU’s Birds Directive, which falls under the bloc’s biodiversity policy. The initiative requires EU countries to preserve wild bird species and their habitats. Capturing or killing the birds, damaging nests and selling wild birds all violate the directive.

Malta phased out finch trapping in the immediate years after it joined the EU and fully banned the practice in 2009.

In 2014 and 2015, Malta adopted several measures to benefit from the derogation laid down in the directive. Those measures authorised the capture of seven species of finches using traditional nets (‘clap-nets’), subject to compliance with certain conditions.

However, by a decision of the Court of Justice of the European Union, dated June 21, 2018, the 2014 and 2015 measures authorising the autumn trapping of finches were declared to be not in conformity with the directive since they did not contain any reference to the absence of another satisfactory solution.

That decision also found that Malta had not adduced evidence that the derogation at issue was used under strictly supervised conditions within the meaning of the directive. It considered that, in the context of Malta, characterised by a very high density of licence holders, namely over 4,000, and of registered trapping stations, namely over 6,400, the fact that merely 23 per cent of hunters had been subject to individual checks seemed inadequate.

Malta had justified its derogation in terms of article 9(1)(b) of the Birds Directive. The decision to rely on a derogation cannot be understood other than as Malta’s acceptance that, if it were not within the scope of a derogation, the activity that its legislation provides for would be contrary to the Birds Directive.

True, while the Birds Directive allows for a research derogation from what would otherwise be considered the prohibited capturing and disturbance of wild birds, it does not contain any indication about the meaning of the wording “for the purposes of research” in article 9(1)(b) thereof.

Now, by another decision of the same court on September 19, Malta’s trapping of protected finches for “research purposes” was declared illegal.

Gozo Minister Clint Camilleri argued that the ECJ ruling had only found “minor breaches” in the way Malta implemented the research project. He also stated that he remains “resolute in defending the lawful practices of hunters and trappers”.

On the other hand, Birdlife accused Camilleri of “blatantly twisting the facts” of the ECJ ruling.

So, what, exactly, were the facts?

Undoubtedly, in our country, finch trapping is a cultural tradition. People cast wide nets over the ground to catch finches, particularly greenfinches, siskins and hawfinches, to keep them as songbirds or sell them in pet markets. Trappers often set decoys too to attract the birds.

The government is using science as a kind of Trojan horse to bypass the Birds Directive- Mark Said

Under EU law, trapping is admissible only when there’s no other solution to protect public health, livestock, crops or for teaching and research.

In 2020, the government launched the Finches Project under Framework Regulations, which fell under the same conditions as its previous regime but with one key difference. Rather than falling under the recreational category, this was presented as part of the derogation for research purposes. The “research purposes” purported to investigate where migratory finches come from when they land in Malta in the fall.

This latest ECJ ruling in a battle that has been going on for years clearly concluded that the project does not establish a genuine research purpose and, hence, cannot be considered as being justified. It ruled Malta’s law allowing for the live capture of seven species of finches isn’t based on research and, therefore, breaches EU bird protection laws.

It should be very clear by now that the government is using science here as a kind of Trojan horse to bypass the Birds Directive. Finch trapping may be a tradition but traditions can do great harm in nature and have, of necessity, to be forbidden with time.

The project itself was full of flaws both in its design and its implementation. The very same sites that were registered for this research project were being used for massive illegal trapping. Thousands of finches trapped at the same sites by the same individuals registered for finch trapping were confiscated following reports. An estimated 51,400 finches were taken into captivity instead of being released, which was one of the conditions.

Deep down, the minister knows this has absolutely nothing to do with science and that ‘science’ is being abused to enable the trappers to continue to fill the aviaries with protected birds and sell them on the black market.

As things stand, it all seems like a lost cause for the government but expect it to persist in its intransigence.

For the time being, the ruling should prohibit trapping but expect that trappers will still operate under the radar as they go out and try to trap finches.

Mark Said is a lawyer.