Opinion by the EU Advocate General in Case C-23/23 Commission v Malta on derogations for research purposes

Thursday 30th May 2024

Opinion in Case C-23/23 Commission v Malta (Derogation for research purposes)

(Environment)

In the European Union, wild finches are protected by the Birds Directive.

The primary objective of the Directive is the preservation of all bird species diversity, meaning that the deliberate killing or capture of birds and the use of large scale or non-selective methods to do so is forbidden.

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 to gradually phase out the activities of bird trapping, 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v Malta (C-557/15) declared that this regime failed to meet the respective derogation conditions and consequently Malta repealed it.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 under the derogation for purposes of research.

The Commission viewed this as simply a ‘cover up’ to enable to continuation of the previous recreational regime.

On December 3, 2020, the Commission sent Malta a letter of formal notice.

Malta replied on the February 3, 2020, claiming that the Project is indeed justified by the derogation since it serves research purposes, namely that of answering the research question; “where do finches that migrate over Malta during post-nuptial (autumn) migration come from?”.

On the June 9, 2021, the Commission sent its reasoned opinion expressing the same grievances as in the formal notice.

Following discussions between the two parties, Malta repealed Framework Regulations 2020 and on October 19, 2021 adopted Framework Regulations 2021.

The Commission views both Framework Regulations as constituting the same conduct and therefore treats them collectively as one measure.

On December 20, 2023, the Commission lodged its application requesting the Court of Justice to declare that Malta has failed to fulfil its obligation under the Birds Directive.

On April 21, 2023, Malta filed its defence requesting the Court to dismiss the action on the basis of inadmissibility or, in the alternative, as unfounded.

An oral hearing was held on the March 7, 2024 in Luxembourg.

Background Documents C-23/23