Issue link: https://maltatoday.uberflip.com/i/786708
maltatoday, WEDNESDAY, 15 FEBRUARY 2017 4 News AG: Socio-cultural card incompatible with Birds' Directive CONTINUED FROM PAGE 1 Yesterday government, dismissed the report on its divergences with the AG as "pure speculation" and a last-ditch attempt at influencing the pro- ceedings of the European Court of Justice. But in his email, the head of the Wild Birds Regulation Unit asked the AG whether any alternative ar- guments can be made if the AG's office feels that the previously dis- cussed legal arguments "are insuf- ficiently strong, or may not be the best arguments available." In a strongly worded reply, the AG's office retorted that "all legal avenues were explored" and sternly replied to Golovkin's accusations by saying "if nonetheless, you do indeed harbour any such doubts – or consider that this Office's in- tention is purely to be 'unconstruc- tive' in any way – then this is a very serious accusation indeed which ought, if at all, to be taken up at a far higher level." The senior lawyer said that while the AG's office was obliged to ad- vise government of any plausible legal justifications which may be successfully brought forward in defence of its position at EU law "it is also its undeniable duty to inform Government whenever its chosen course cannot be deemed 'lawful' under any constructive in- terpretation of applicable EU law and jurisprudence." Pointing out that the AG's of- fice has taken up all past and pre- sent infringement actions against Malta and has "unparalleled legal expertise" in the field, the senior lawyer goes on to say that the of- fice "has a sufficiently clear idea of which legal arguments may or may not be upheld" by the ECJ. Trapping of all birds is prohib- ited by EU law and was phased out and eventually banned in Malta in 2009, in line with its EU accession treaty. However, Roderick Galdes, junior minister responsible for hunting, reintroduced the trapping of seven species of wild finches – on the assumption that Malta can derogate from EU law in a similar fashion to spring hunting. When applying the derogation, the government had argued that an article in the EU Birds Directive allows EU member states "where there is no other satisfactory solu- tion… to permit, under strictly su- pervised conditions and on a selec- tive basis, the capture, keeping or other judicious use of certain birds in small numbers." However, the European Un- ion's Environment Commission – spearheaded by former Labour minister Karmenu Vella – has ar- gued that the traditional Maltese use of clap nets is a non-selective trapping style, and that trapping birds for leisure does not consti- tute a "judicious" reason to dero- gate. In the second email sent to Golovkin on 8 August, the senior lawyer said "to put it very bluntly – and on the basis of the exhaustive objective analysis of the relevant provisions of the Birds' Directive and relevant jurisprudence – the finch trapping derogation is clearly contrary to the purpose and spirit of the Birds' Directive; and no amount of legal argumentation or rhetoric will be likely to convince the Commission or Court other- wise." The email explains that the dero- gation could be defended success- fully if Malta proves in court that finch trapping serves some other legitimate aim as expressly men- tioned in the directive's Article 9(1) (a) or as recognised in the case law. However the senior lawyer warned that "arguing that the sole aim of this derogation is purely to safeguard a 'traditional' socio- cultural activity cannot, under any logical interpretation of the appli- cable law, be regarded as compat- ible with the provisions and spirit of the Birds' Directive." Moreover, the lawyer pointed out that it was unanimously agreed that it would be too late to credibly invoke other legitimate purpose for finch trapping since it would be impossible to convince the Com- mission and ECJ that this was Malta's genuine aim "and not just a last-minute excuse we have coined to mask the real reason behind the proposed derogation: namely the practice of trapping per se as socio-cultural activity, which Malta has repeatedly emphasised throughout its discussions with the Commission to date." The senior lawyer said that if government was dissatisfied with this advice and assistance, govern- ment was free to seek independ- ent legal advice, adding that the AG would be more than happy to take on board further legal argu- ments "which might increase Mal- ta's chances of success, however slightly." In a terse reply, while acknowl- edging that government and the AG had diverging views Golovkin admitted that the defence put for- ward by the AG "are the best argu- ments that we have given the over- all context." BirdLife: Political promises are no valid reason to derogate from trapping ban BirdLife Malta yesterday slammed the "political promises" that led to what it described as "the current free for all" in songbird trapping. During a press conference held by the NGO outside the law courts yesterday morning, BirdLife Malta President Darryl Grima, made ref- erence to MaltaToday's revelations on Sunday that the AG had advised against opening the season, on the grounds that it was legally indefen- sible. The office of the AG is not a legal office but a constitutional institu- tion whose job it is to give legal advice to government, Grima said. "It's like there was a door with a no entry sign and a person, the AG is next to it telling you not to open it, but Malta still did so...So much so that Parliamentary Secretary for Agriculture Fisheries and Animal Rights Roderick Galdes chose not to use the AG to represent Malta's case, opting instead for a private law firm." Mark Sultana, the organisation's Chief Executive criticised the police for "nearly never taking the initia- tive" and alleged that the strict sur- veillance, a condition of the deroga- tion, was merely window dressing and was "practically impossible to enforce." Sultana asked what the Opposi- tion's position on the issue was, pointing out that trapping was supposed to be phased out as part of Malta's EU accession. "Political promises are not a justifiable reason to derogate." This was not an action against Malta's people, but against the government's wrong decision in 2014, he said. Ahead of Malta's hearing before the European Court of Justice, BirdLife Malta slammed the 'political promises' that led to the state of songbird trapping Minister dubs PN leader a 'threat to democracy' after calls for FIAU report publication JAMES DEBONO LABOUR voters who believe that "there is corruption" in the award of government contracts and in the issuance of planning permits, outnumber other PL voters who believe there is no corruption in these two crucial aspects of public administration. A MaltaToday survey carried out last week has shown that among switchers – respondents who voted PN in 2008 and PL in 2013 – the perception of corrup- tion in planning and contracts is even greater. The survey shows 38% of PL voters in 2013 believing that there is corruption in the award of government contracts, and 39% believing that there is cor- ruption in the Planning Author- ity. On the other hand only 26% of PL voters believe that there is no corruption in the award of gov- ernment contracts and only 27% believe that there is no corrup- tion in the planning authority. Among former PN voters who switched to vote PL in 2013, 73% believe that there is corruption in the award of public contracts while 60% believe that there is corruption in the planning au- thority. The survey also shows that a majority of switchers (53%) be- lieve that in general contracts, permits and government jobs are being awarded to people with the right political contacts. Only 20% of switchers believe that jobs, permits and contracts are awarded on the basis of mer- it. Even among Labour voters only 38% believe that these are award- ed in the basis of merit while 28% replied that these are awarded to people who know politicians. A further 21% replied "depends". A PA board meeting in progress. MaltaToday respondents fear that there is "corruption" in the issuance of planning permits