Judgment in Case C-23/23 Commission v Malta on derogations for research purposes

Thursday 19th September 2024

Judgment in Case C-23/23 Commission v Malta (Derogations for research purposes)

(Environment)

In the European Union, wild finches are protected by the Birds Directive (“Directive”). The primary objective of the Directive is the preservation of all bird species diversity, forbidding the deliberate killing or capture of birds and the use of large scale or non- selective methods to do so. Despite this, the Directive, however, prescribes specific circumstances whereby the general prohibition may be derogated from.

When Malta joined the EU, the relative Accession Treaty provided for a transition period whereby Malta obligated itself to gradually phase out the activities of bird trapping since such practice is prohibited under the Directive.

After successfully banning finch trapping, in 2014 Malta adopted the recreational derogation regime provided for under the Directive to enable the trapping of seven species of wild finches as a recreational activity.

In 2018, the Court in Commission v Malta (C-557/15 – see also Press ReleaseNo 90/18) declared that this regime failed to meet the respective derogation conditions, namely the criterion relating to “small number” (known as the “knowledge gap”) and consequently Malta repealed it.

In 2020 Malta adopted the Finches Project under Framework Regulations 2020, which provided for the live capture of the same seven species of wild finches, this time however under a different derogation – the derogation for purposes of research under the Directive. The Commission views this as simply a ‘cover up’ to enable to continuation of the previous recreational regime, and for this reason, and amongst others, has initiated the present infringement action.

On December 3, 2020 the Commission sent Malta a letter of formal notice indicating that the Finches Project is inconsistent with the provisions of the Directive. Malta replied claiming that the Project is indeed justified by the derogation since it serves research purposes, particularly that of answering the research question; “where do finches that migrate over Malta during post-nuptial (autumn) migration come from?”. Ultimately, the Commission delivered its reasoned opinion on June 9, 2021 expressing the same grievances as in the formal notice.

Following discussions between the two parties, Malta repealed Framework Regulations 2020 and adopted Framework Regulation 2021 on October 19, 2021. On December 20, 2023, the Commission lodged its application requesting the Court to declare that Malta has failed to fulfil its obligation under the Birds Directive.

Malta filed its defence on April 21, 2023 requesting the Court to dismiss the action on the basis of inadmissibility or, in the alternative, as unfounded. An oral hearing was held on March 7, 2024 in Luxembourg.

On May 30, 2024, Advocate General Tamara Ćapeta delivered her opinion on this case.

Background Documents C-23/23