Updated 5.55pm with Minister Clint Camilleri's comments below.

The European Court of Justice has been advised that Malta failed to observe its obligations under EU law when it adopted a derogation scheme allowing the live capturing of seven species of wild finches.

In an expert opinion, one of its advocate generals, Tamara Ćapeta, concluded that the Finches Project, both in regards to its design and implementation is “flawed”, to the extent that the court should find that it does not establish a genuine research purpose and therefore cannot be considered as being justified under the derogation of the Directive.  

She said that the Finches Project adopted by Malta was not a genuine research project since the current capture and disturbance of wild finches was disproportionate to the scientific benefit of the project, hence unjustifiable under EU law.

The expert opinion is not binding, and the European Court of Justice will still eventually deliver its final judgement. 

In an initial reaction, the government said it was "disappointed" by the conclusions.

It said it remained "committed to the cause" and was willing to re-open proceedings before the Court of Justice to continue defending the research derogation and the interests of hunters and trappers.

Minister sees positives in Advocate General's report

In a Facebook post later, Camilleri listed positives he had found in the Advocate General's recommendations to the court.

He said the Advocate General had refuted the European Commission's argument that Malta could not apply a derogation for research for reasons which were not linked to conservation.

She had acknowledged that a research derogation was allowed under the Birds Directive and did not exclude such derogations even for recreational purposes once sufficient information was available on the species.

 Another 'important victory' Camilleri said, was that the Advocate General confirmed that the use of a clap-net system was acceptable in the application of a derogation, contrary to what the European Commission had argued. 

The Advocate General had said there were grounds for improving the application of such a derogation but never said that research projects such as this were unacceptable.

Camilleri said the government would continue to see what improvement could be made to the implementation of the derogation. 

Trapping of protected finches banned by the EU in 2018

Ćapeta's opinion was requested as the European Court hears the case filed against Malta by the European Commission over alleged breaches of the Birds Directive. 

The controversial practice of trapping protected finches using cages and nets was effectively banned by the European Court of Justice in 2018.

But in 2020, the government went ahead and opened the season anyway, claiming it was for a scientific study to ring birds and release them. For some years now trappers have been participating in this catch-and-release ‘study’.

Activists have slammed the so-called research, with the Committee Against Bird Slaughter calling it "poaching under the cover of pseudo-science".

Proceedings against Malta on finch trapping were initiated in December 2020 with a Letter of Formal Notice sent by the European Commission, followed up by a reasoned opinion and finally a fully-fledged court case which was filed in January last year.

AG Ćapeta stated that large-scale capturing of birds, as envisaged under the Finches Project, simply to collect data from birds already ringed, cannot justify the project, irrespective of the objective, be it to reintroduce the recreational derogation envisaged under the original Framework Regulation 2020 or, as Malta claimed, to pursue wider conservation objectives.

She agreed with Malta’s arguments on the inclusion of people who previously participated in the recreational derogation project, since it can even have an education component.

However, despite claiming that the project is based upon the concept of citizen science, she concluded that Malta failed to explain the reasons why the project was not open to all citizens who may wish to participate.

She said there were clear indications that the project was designed and implemented to allow a particular group of citizens to continue the recreational trapping of finches.

Additionally, the fact that the project is not involved in the cooperation with any other research project, makes it even more difficult for Malta to defend it through the lens of citizen science, she said.

Additionally, she noted that the derogation may only be resorted to “where there is no other satisfactory solution”, meaning it must be proven that other methods - that are either accepted by the directive or involve a derogation and which are less intrusive - are not available.

In this regard, she observed that the Commission had proposed the involvement of expert ornithologists, something that was originally envisaged by Malta but was subsequently neglected after the involvement of bird ringers at the point of data gathering failed.

Despite these efforts, she found that Malta failed to explain why such methods would not be able to answer the research question at issue.

She therefore suggested the court should declare that Malta failed to observe its obligations under EU law when it adopted a derogation scheme allowing the live capturing of seven species of wild finches.

If the Court of Justice finds there has been a failure to fulfil obligations, the member state must comply with the court’s judgment without delay.

Where the commission considers that the member state has not complied with the judgment, it may bring further action seeking financial penalties.

In March Birdlife had said it had collected evidence from finch trapping sites showing "rampant abuse of a smokescreen scientific research derogation".

The NGO said that with over 2,600 registered trapping sites for finches last autumn, fieldwork carried out by its members had revealed that an even greater number of trapping sites were operating illegally, with some becoming registered with the Wild Birds Regulation Unit (WBRU) after reports were filed with police.

BirdLife Malta's Head of Conservation, Nicholas Barbara, estimated a minimum of 51,400 finches have been trapped from permitted sites and taken into captivity without being released.

"From what we witnessed, trappers managed to catch around 65% of the birds that landed on a trapping site, with the remainder managing to escape. In all cases of caught birds, however, these were never released. This is a far cry from any scientific research activity which the derogation is supposedly aimed for," Barbara noted.

BirdLife Malta welcomed the ECJ AG Opinion and now looks forward to the court ruling against the "smokescreen" finch 'scientific research' trapping derogation once and for all.

"Today's AG opinion sends a clear message that Malta should put an end to this cruel practice that allows songbirds to be trapped until they perish. In view of today’s developments, we call on the government not to open another trapping season this year, before the ECJ delivers its final ruling since it is now clear that applying this derogation in the past years was in breach of European law."

Hunters: The European Commission, Advocate general are misinformed

The hunters' association Kaċċaturi San Ubertu in a statement said it was very clear that the EU Advocate General, who never laid a foot in Malta, and the European Commission did not have first hand factual information but relied entirely on reports sent by Birdlife Malta and its partners who for years had been seeking a total ban on trappers.

This, the association said, was an injustice towards a sector that has a lot to offer in terms of ornithological science but has only suffered a bad name and a hindrance from Birdlife Malta.

It referred to years of correspondence, which is said was ignored by (hunting) minister Clint Camilleri and his predecessors emphasizing the need for a national ringing scheme which, contrary to the current scheme run by Birdlife Malta, would involve the trapping sector, ornithologists and others who, it said, are shunned by Birdlife Malta.