The duty to safeguard wild birds and their habitats

The Birds and Habitats Directives, as they are commonly referred to, are the two most important pieces of EU legislation intended for the conservation of wild birds and their habitats in the European Union of which Malta proudly forms part.

I will focus here on the Birds Directive, even though this clearly goes hand in hand with the Habitats Directive, adopted in 1992 for the conservation of natural habitats and of wild fauna and flora.

The Birds Directive was adopted unanimously in 1979, largely in response to increasing concern about the declines in Europe's wild bird populations resulting from pollution, loss of habitat as well as unsustainable use.

The preamble formally acknowledges that the species of wild birds naturally occurring in the European territory of the member states are mainly migrating species. Above all, it sets out to declare that such species constitute a common heritage and, notably because of that, effective bird protection is typically a trans-frontier environment problem entailing common responsibilities.

The basic prohibition on hunting is to be found in article 5(a), which requires member states to prohibit in particular the "deliberate killing or capture by any method" of Europe's naturally-occurring wild birds.

In spite of that, the Birds Directive fully recognises the legitimacy of hunting of certain listed species of wild birds as a form of sustainable use. Hunting is acknowledged as an activity that provides significant social, cultural, economic and environmental benefits in different regions of the European Union.

However, this is clearly framed under article 7 as an exceptional activity to the rule, which is prohibition. Owing to their population level, geographical distribution and reproduction level throughout the Community, those species listed in Annex II may be hunted, subject always to wise use, ecologically-balanced control of species and compatibility with populations particularly with respect to migratory species. This would include turtle dove and quail, both of which are migratory species, some pairs of which are also most likely to stay on to breed here, given the chance.

Overridingly, though, member states are required to ensure that the species to which hunting laws apply are not hunted during the rearing season or during the various stages of reproduction. In the case of migratory species, they shall see to it in particular that species to which hunting regulations apply are not hunted during their period of reproduction or during their return to rearing grounds.

This is the very crux of the topical "debate" on the spring hunting issue currently raging in pre-election Malta, which the Birds Directive very explicitly proscribes. We shall see when analysing some pertinent judgments further on that the European Court of Justice has very categorically interpreted this particular provision as requiring "complete protection of species concerned".

While article 9 of the directive authorises member states to derogate from the provisions of articles 5, 6, 7 and 8, this is very heavily conditioned by a number of criteria.

Firstly, there must above all else be no other satisfactory solution; and then any such departure must be founded either (a) on grounds of public health and safety, or (b) for purposes of research and teaching, re-population or re-introduction of species or (c) under strictly supervised conditions and on a selective basis, for purposes of the capture, keeping or other judicious use of certain birds in small numbers.

At least in my opinion, these, shall we say, conditions precedent to any derogation completely seal the fate of any claim to the practice of spring hunting being a legitimate pursuit in Malta from being taken seriously. Under the Treaty of Rome, member states are in duty bound to transpose directives into their national legislation and to fully implement them.

Unfortunately, these nature directives have not been fully transposed in all countries and their implementation has been generally slow. The positive side of this, however, is that such inaction has given rise to a number of complaints sent to the Commission, several of which have turned into full-blown infringement procedures - as the Maltese government is now facing - and ended up with the European Court of Justice.

The various judgements of the ECJ are therefore available as an invaluable tool in the proper construction of the various articles of the directives, and this should serve as a guide for their better implementation and enforcement at national level.

I will just cite three noteworthy cases among many.

In Case 236/85 (Commission v. Kingdom of the Netherlands), the Court called attention to the fact that a faithful transposition of the Community legislation in the form of the Birds Directive into national law is particularly important since in such case the management of the common heritage (that is, the conservation of wild birds) is entrusted to the member states as regards their respective territories. Interestingly also in this case, the Court rejected as invalid an argument sought to be brought forward by the Netherlands seeking to justify the practice of the taking of nests of certain birds in a certain area on grounds of "historical and cultural tradition".

That, I believe, puts paid to Carmel Farrugia's submissions in Hunting: A Way Of Life (February 16, 2008).

In Case 247/85 (Commission v. Belgium), the Court confirmed that when implementing the directive, the member states have an obligation to protect species of all wild birds occurring in the territory of the Community and not merely those species occurring in their national territory. This has very important ramifications in regard to the protection of migratory birds.

In Case 157/89 (Commission v. Italian Republic), the Court held that, by authorising the hunting of various species of wild birds during the rearing season and the various stages of reproduction and of various migratory species during their return to their rearing grounds, the Italian Republic failed to fulfil its obligations under the directive. In this landmark judgment, the Court enunciated the "complete protection principle" - admittedly one of the most important safeguards in relation to wild bird protection policy.

The management of hunting has proven to be one of the more controversial elements of the Birds Directive. Because of this, the Commission together with experts from member states and key stakeholder groups has drawn up guidelines to help ensure that the practice of hunting is sustainable and in conformity with the requirements of the directive. This publication is commonly referred to as the "Guide to Hunting".

However, the management of hunting is the responsibility of the member states, including their role in determining hunting seasons within their territory in accordance with the requirements of the directive.

Ultimately, it will rest with the European Court of Justice to provide definitive interpretation of these relevant provisions of the Birds Directive which I have touched on, in relation to the particular circumstances of Malta's case, when coming to rule on Malta's surely-to-be contested spring hunting case, which the Commission has now referred to the Court, it being most unlikely that this or any future government would relish raising the white flag in the eyes of the vociferous local hunting lobby, much though that might be the gentlemanly thing to do.

The major political parties do however both seem to be in unanimity on one thing in this electoral campaign. They have both declared that they will respect the wisdom emerging from Luxembourg, where the European Court of Justice sits.