The tradition of capturing live finches for their song is ingrained into life on the rocky island of Malta. The treasured cultural practice, known as ‘trapping’, is chronicled in historical record going back as far as 1565.
However, from 2009 to 2013, islanders were officially prevented under the EU’s Birds Directive from trapping the small, migratory birds that pass over the island twice each year.
This isn’t to say the custom contravenes EU rules, as the same directive was used to re-authorise the trapping in 2014 by applying a derogation, a supervised exemption “on a selective basis for certain birds in small numbers”.
So, with a derogation in place, why is this Maltese tradition threatened again, presented as a legal ‘grey’ area to the European Court of Justice? And how can the socio-cultural traditions of the people on Malta and in Europe be protected alongside the finches and other birds that pass overhead?
Part of the answer lies in the European Commission’s decision in relation to the live-capturing of Ortolan Buntings (a bird not dissimilar to the finch).
The similar tradition was tolerated by France, but not by the Commission, who took the country to court to implement a ban on the practice. In August of this year, before the issue would be decided in court, France “announced tougher measures” to protect the birds. The Commission elected to take the member state at its word rather than apply the rules and the scrutiny that comes with them, and the case was dropped last month.
By contrast, in seeking a derogation, Malta opened itself up to continuous supervision by European authorities who impose strict limits on the numbers birds trapped, select specific trapping methods, and put in place requirements on the eventual judicious use of caught birds. Any breaches of the set conditions are met with the harshest penalties and heaviest fines anywhere in Europe. And yet, Malta has been dragged before the European courts to fight yet again for an essential part of its cultural heritage. It appears that, in going by the book, Malta is having the book thrown at them.
There are lessons in the case for other EU member states with bird-capturing traditions. France, Finland, Ireland, Italy, Portugal and Spain all have similar regional practices which operate under the same derogation that could face the same fate.
Malta could well be the sacrificial lamb used to send a message to EU member states to take unilateral bird protection action before the Commission gets involved. They will be watching the actions of the court closely.
They may consider pursuing the path chosen by Austria, where the same species of finch is caught using similar methods to that used on Malta. The question of whether a derogation need apply has been circumvented entirely because UNESCO has classified Austrian live-finch trapping an Intangible Cultural Asset.
It would be a cruel irony for Maltese trapping to be banned just as we move into 2018, the European Year of Cultural Heritage, a year in which Valletta, Malta’s capital, will be the European Capital of Culture.
Last month, the European Parliament, in its resolution on EU Action Plan for nature, people and the economy, welcomed “flexible approaches to implementation that take into account specific national circumstances, help reduce and progressively eliminate unnecessary conflicts and problems which have arisen between nature protection and socioeconomic activities.”; echoing a similar call made by the Council of the European Union last June.
The test case is here and soon we will know whether the direction proposed by the Commission will be applied. Upon the decision of the Court of Justice, member states will know whether their socio-cultural traditions are best protected by playing by the rules or avoiding their application altogether.