Appraisal of the case law of European Court of Justice on derogations relating to application of the Birds Directive : Court of Justice case law on the Birds Directive : a critical assessment

Abstract

This research project presents an analytic and critical study of an assortment of case law under the Birds Directive, conferred before the Court of Justice of the European Union. Its main focus is Article 9 relating to derogations. Furthermore, reference is made to a number of cases in which Member States have permitted a derogation, stating that they have applied the necessary conditions; in most cases however, the Commission doesn't agree and takes the MS before the ECJ. The interviews with Sergei Golovkin and Joe Perici Calascione and the correspondence with Ion Codescu reveal that article 9 is well-drafted and that obtaining a derogation is a rather difficult endeavour. The first two experts in the area claim that the Birds Directive is not providing for new circumstances and that the notion that all Member States are placed under one article is definitely not working since each Member State is different. Had the directive been clear enough, there wouldn't have been a tonne of case law on derogations. Similarly, Ion Codescu also holds that despite being authorised to do so, the Commission has never submitted any penalties when the Member States failed to follow a judgment by the Court. When speaking in terms of the Maltese judgment against the Commission, it would seem that Malta is applying Article 9(1)(c) well at the moment. It is thus safe to say that a progression has been made seeing that the derogation had not been applied correctly in the past. At present, Spring Hunting is only allowed for two weeks, till noon and hungers can only catch up to two birds per day and four birds maximum throughout the whole season. Furthermore, the surveillance enforced by both the authorities and the NGOs is very strict and rigid. Despite all this, what seems to be somewhat problematic is the fact that the turtle dove is now considered as an endangered species, which has consequently caused the IUCN to call for a moratorium.