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maltatoday | WEDNESDAY • 20 JUNE 2018 2 NEWS JAMES DEBONO THE European Court of Justice is expected to publish its final deci- sion on the lawfulness of trapping seven different species of song- birds during the autumn season tomorrow. The decision could re-establish the ban on trapping mandated by EU laws, and possibly end a century-old tradition of trapping migratory songbirds flying south to Africa over Malta. Contacted by MaltaToday, FKNK President Joe Perici Ca- lascione augured that the judici- ary will "apply the true spirit" of the directive which according to him leaves space for "exceptions whenever there are no alterna- tives." He also augurs that the judici- ary will not ignore the principle of "cultural diversity" enshrined by UNESCO. Perici Calascione mentioned Austria as an exam- ple where trapping of song birds is allowed and valued as a cultural tradition. "The European Union should respect the particular circum- stances in each member state and should not apply a 'one size fits all' approach." Austria had obtained recogni- tion of the practice as an Intan- gible Cultural Heritage by UNC- ESCO. But according to Bird Life's conservation manager Nick Bar- bara, the comparison with Aus- tria is not tenable. "The clap nets are far smaller than Malta's, it operates on a catch-and-release basis, and it is limited to just 500 birds," adding that the impact on birds was far smaller when compared to Malta where 4,000 trappers are allowed to trap 10 songbirds each. He also dismissed the argument that trapping is a cultural tradi- tion, insisting that this is nothing but trapping protected birds for "recreational purposes." "How acceptable is it to impact negatively on protected bird pop- ulations for the sake of recrea- tion?" Barbara expects the European court to uphold the opinion of the ECJ's Advocate General that trapping should be banned. In June 2017, Eleanor Sharpston stated in an opinion to the ECJ that the court should rule that by opening a trapping season for finches, the Maltese government would fail to fulfil its obligations to abide with the Wild Birds Di- rective. Finch trapping is illegal under EU law, and only allowable un- der strict conditions. Sharpston stated that she was "entirely con- vinced that the present arrange- ments do not respect Malta's ob- ligations under EU law". The core of the Advocate Gen- eral's opinion is that she has turned down all of Malta's argu- ments in relation to those condi- tions necessary to derogate from the trapping ban, namely: 'judi- cious use'; trapping as a 'tradi- tion'; the argument that there is 'no other satisfactory solution'; the use of clap-nets as a medium of capture that can be derogat- ed; and the fact that these type of nets are a method of capture that is both large-scale and non- selective. The Advocate General also questioned the capabilities of en- forcement, and expressed serious doubts as to the credibility of the methodology used by Malta. She also expressed strong doubts that Malta can demon- strate that the populations of the seven species of finch can be maintained at a satisfactory level. To the contrary, she stated that it may even be that there is some risk that the use of clap-nets by 4,000 licence holders over a trap- ping season of 73 days may, po- tentially, be "capable of causing the local disappearance of a spe- cies". But according to Nick Barbara much will depend on the "word- ing" of the sentence. "If the wording is ambiguous, as was the case with the sentence on spring hunting in 2009, the government may still end up al- lowing trapping. Malta was obliged to phase-out trapping for the seven species by 2009, but the outlawed practice was reintroduced in 2013 under a new Labour administration. The European Commission took the government to court in October 2015. The seven species that are trapped are considered as song- birds in European Union states and are fully protected. Trapping with clap-nets and decoys is ille- gal in the EU Political repercussions The judgment also has politi- cal repercussions. Prime Minis- ter Joseph Muscat has stood by the trapping community, aware of the voting niche they occupy, and has defended his decision to open up autumn trapping, argu- ing that the numbers caught are too small to leave an impact on the bird populations. His position has strengthened Labour's hold in Gozo and other rural areas. The government will not be allowed to appeal the deci- sion and will have no choice but to honour it or risk massive fines which will be an unacceptable price to pay for taxpayers who do not engage in this hobby. Although Muscat will not be personally blamed for a decision taken by the European court, a ban on trapping may swell ab- stentions in MEP elections due next year as trappers blame the EU for their fate. But if the derogation on trap- ping is confirmed, Muscat's standing among trappers will receive another boost and the environmental lobby will receive a second consecutive blow fol- lowing the defeat in the spring hunting referendum which saw a slight majority in favour of re- taining the hobby in spring. The decision could also re- lease countless hectares of pub- lic and private land from trap- ping sites, which traditionally consist of clap-nets surrounded by live decoys in cages and and others which are coerced to fly, as migrating birds pass over the trapping sites. But this would also depend on the willingness of the government to enforce the law. Future of trapping to be decided tomorrow MATTHEW AGIUS FORMER PN minister Tonio Fenech has lost the libel suit he had filed against Tourism Minister Konrad Mizzi over a 2014 radio interview in which Mizzi blamed him for ram- pant electricity theft. In its ruling the court said the allegations were "criti- cism and comments based on facts which are substan- tially true". In an interview on ONE ra- dio in February 2014, Mizzi had said that Fenech was aware that new utility meters were easy to tamper with and had done nothing about it. It emerged from the evi- dence of a number of wit- nesses, that Enemalta Cor- poration at the time had been suffering from losses caused both by the infra- structure and theft. In 2008, before Fenech be- came minister, the corpo- ration had entered into an agreement for the supply of smart electricity meters and a centralised computer monitoring system intended to reduce electricity theft. Despite some initial suc- cess, theft started to increase again in 2011, at which point the corporation discovered that the smart meters for three-phase systems were susceptible to tampering us- ing a magnet. However, after commissioning an expert to assess the problem, the com- pany had done nothing with his findings. The court observed that the corporation's theft con- trol unit had only been set up during Mizzi's tenure. It also noted that although smart meters started being installed in 2009, the cen- tral analytics system used to identify theft cases was not installed until 2014. Mizzi raised the defence of fair comment. The court, in its considera- tions, observed that elected representatives were there to serve the citizenry and move the country forward, but when additional respon- sibility, such as Enemalta, was placed under that rep- resentative's control, the responsibility towards the citizen increased a great deal and all actions made by the entity under his control were his responsibility. If a shortcoming is identi- fied, the minister concerned should shoulder the respon- sibility and not dust it off onto third parties, the court said. It was clear that the En- emalta Corporation was Fenech's responsibility, said the magistrate, and although there were plans in place to reduce electricity theft, not enough was being done ef- fectively to do so, or identify the thieves and the figures produced during the case were a clear indication of this. "Therefore, the applicant cannot say that the words used about him by the de- fendant… are libellous and defamatory as they were simply criticism of what happened in the past, criti- cism which is always per- mitted to a politician when he is talking about the ac- tions of another politician, as long as the criticism and comments are based on facts which are substantially true and proven," the court said. Magistrate Francesco De- pasquale dismissed the suit, ordering the plaintiff to suf- fer the costs of the case. Konrad Mizzi's criticism of former PN minister Tonio Fenech not defamatory, court rules Konrad Mizzi Tonio Fenech