In late July, European Union Advocate General Eleanor Sharptson issued an opinion in EU Commission v Republic of Malta concerning the legality of Malta’s finch capturing program. Maltese national law permits an autumn live-capturing season of seven different species of wild finches. The EU Commission alleges that Malta’s program violates the European Parliament’s Wild Birds Directive. The Advocate General’s opinion does not, by itself, outlaw any hunting or trapping practice. If adopted by the Court of Justice of the EU, it could have serious implications for Malta’s hunters and could foreshadow similar opinions for the practices of other European countries.
The Wild Birds Directive prohibits capturing, keeping, or the deliberate killing of wild birds, unless certain exemptions apply. An EU member-country may allow derogations from the Directive if circumstances justify such derogations. The Directive permits, “where there is no other satisfactory solution,” . . . “the capture, keeping or other judicious use of certain birds in small numbers.” Advocate General Sharpston was asked to examine 1) whether Malta’s finch trapping practice be replaced with another “satisfactory solution,” and 2) whether the practice satisfies the Directive’s requirements for “judicious use” of the finch species.
On the first issue, Advocate General Sharpston concluded that Malta’s finch capturing program was not the only “satisfactory solution.” Since captive breeding could replace Malta’s traditional program and allow Maltese people to own finches, breed them, or use them as live decoys without capturing wild finches, Sharpston determined that Malta’s program did not qualify as a permissible derogation. Further, Sharpston suggested that Malta could allow a catch-and-release program to replace the current capturing aspect of Malta’s current program.
On the second issue, Advocate General Sharpston concluded that the “judicious use” language permits country-members to authorize the capture of the number of birds “objectively necessary” to meet the desired purpose. In this case, the annual total bag limit for finches in Malta was 27,500. With somewhere between 20,000 and 40,000 finches currently in captivity in Malta, Sharpston found it implausible that 27,500 would be needed to replace the number of finches that die in captivity each year. She also determined that an effective captive-breeding program could meet the yearly demand. Sharpston also found that Malta’s current practices do not meet the requirements of the Wild Birds Directive because their use results in large-scale, non-selective capture of finches and other birds.
Although Advocate General Sharpston’s opinion is non-binding and did not address all the issues of the case, it will likely influence the Court of Justice’s final decision. You can read the opinion here.