Comino: beyond sun-block and deckchairs

comino-mp-op-objective

During the past weeks, the island of Comino has been in the news. The controversy surrounding the deckchair/umbrella hawkers free-for-all at the Blue Lagoon focused on overcharging, breaching of permit conditions and the resulting lack of space for the public making use of public facilities at the beach.

Fines were imposed by the Malta Tourism Authority. This is fine (pun intended) in the short term. However, we need to plan for the long term, keeping in mind  that the island of Comino, is first and foremost a Natura 2000 site and a touristic destination second. Sites forming part of the Natura 2000 network are designated as Special Areas of Conservation (SAC) and Special Protection Areas (SPA) according to the Habitats and Birds Directives of the European Union, where habitats and species are listed. The Directives are designated to provide protection to the most vulnerable of the species listed.

It has been stated that every day, at the peak of the summer season, as many as 5,000 visitors land on Comino, most of whom remain in the Blue Lagoon and its environs .

The Natura 2000 Management Plan for Comino published recently, considers that tourism at the Blue Lagoon needs to be controlled efficiently in order to ensure that it is “in harmony with the site’s conservation needs”. One of the measures which the Comino Management Plan establishes as an operational objective is “to plan and implement a tourism carrying capacity assessment of the Blue Lagoon”.

The Management Plan believes that the tourism carrying capacity assessment should be carried out within the first year of the plan’s implementation, which means pretty soon! The issue is of fundamental importance in ensuring that the activity permitted on the island of Comino is compatible with its ecological requirements.

It is not known whether this carrying capacity assessment has been carried out yet. If not it should be done at the earliest.

This is not the first time that Maltese authorities have been asked to consider a proposal to study the possibility of limiting access to a specific site for protection purposes. Around 12 years ago, after rehabilitation work carried out at the Hypogeum in Ħal-Salfieni was concluded, it was decided that there was an urgent need to control its microclimate in order to better protect this archeological jewel so a maximum limit of 80 visitors per day was established.

Various other countries place limits on tourism in order to better control its environmental impacts. There are various examples, but permit me to point to the Brazilian archipelago of Fernando de Noronha, 545 kilometres off the coastal city of Recife. The archipelago is a UNESCO World Heritage site and the number of visitors is restricted in order  to adequately protect its environmental patrimony. The environmental protection rules of the Brazilian archipelago of Fernando de Noronha go into such detail as to even forbid the use of sunprotection lotions/creams or even the use of footwear on the beach, as well as curtailing various other activities incompatible with the archipelago’s ecological characteristics!

It is a path we should consider following for Comino, if we are serious about protecting the little that we still have.

It is welcome news earlier this week as three of Malta’s environmental NGOs, Din l-Art Ħelwa, Friends of the Earth and Nature Trust, have endorsed the proposal for carrying out the capacity assessment of the Blue Lagoon at Comino. Comino deserves our protection. Implementing the Natura 2000 Management Plan for Comino would be a suitable first step.

And the sooner, the better.

published in The Malta Independent on Sunday: 11 September 2016

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Malta’s finch-trapping at the European Court of Justice

goldfinches and linnets

 

On May 1, 2013, Roderick Galdes, Parliamentary Secretary responsible for Hunting and Trapping announced that a technical loophole had been found “that would allow the Government to present proposals to the European Union to allow bird-trapping in autumn.” The European Commission has not been impressed and the loophole referred to by Roderick Galdes will shortly be examined by the European Court of Justice.

During the negotiations leading to Malta’s accession to the European Union, bird-trapping had been one of the areas referred to in the treaty itself. In fact, the Treaty of Adhesion provided for a transition period at the end of which bird- trapping in Malta was to cease permanently. The cut-off date was 31 December 2008.

This limited concession was subject to a number of conditions relative to the setting-up of a captive bird  breeding programme which was to be introduced by 30 June 2005 as well as to carry out various studies intended to establish the numbers and types of species held and bred in aviaries as well as their mortality rate and their replenishment to sustain the genetic diversity of the captive species.

All this was ignored, notwithstanding the fact that, way back in 2004, the authorities had  detailed advice as to how this was to be implemented.

This is the current state of play: the interpretation of the rules as accepted on the date of Malta’s EU adhesion.

 

Earlier this week, the Commission of the European Union decided to refer Malta to the European Court of Justice because Malta is not committed to end finch- trapping. The following was stated by the Commission in an explanatory press release:

“The case concerns Malta’s decision to allow the live capture (i.e. trapping) of seven species of wild finches as of 2014. In the EU, the capture and keeping of bird species like finches is generally prohibited. However, member states may derogate from the strict protection requirement if there is no other satisfactory solution, and if the derogation is used judiciously, with small numbers and strict supervision. As these conditions have not been met in this case, the Commission sent a letter of formal notice in October 2014, urging Malta to refrain from allowing finch-trapping. Despite this warning, Malta went ahead as planned with the opening of a finch-trapping season in 2014. In response, the Commission sent a reasoned opinion to Malta in May 2015, urging Malta to end the practice. Malta has replied, contesting the Commission’s analysis. Since Malta has not committed to end finch-trapping, the Commission has therefore decided to refer Malta to the Court of Justice of the EU.”

In a background note the Commission further noted:

“In Europe, many species of wild birds are in decline, and markedly so in some cases. This decline disturbs the biological balance and is a serious threat to the natural environment.The EU Directive on the conservation of wild birds aims to protect all species of wild birds that occur naturally in the Union. The Directive bans activities that directly threaten birds such as deliberate killing or capture, destruction of nests and removal of eggs, and associated activities such as trading in live or dead birds, with a few exceptions. It also places great emphasis on the protection of habitats for endangered and migratory species, especially through the establishment of a network of Special Protection Areas (SPAs).

Article 9 of the directive provides limited scope for derogations from the requirement of strict protection where there is no other satisfactory solution, for instance, in the interests of public health and safety or air safety, to prevent serious damage to crops, livestock, forests, fisheries and water, and for the protection of flora and fauna. Derogations may also be permitted for the purposes of research and teaching, repopulation, reintroduction and for the breeding necessary for these purposes.

Malta was allowed a transitional arrangement in the Accession Treaty to phase out the trapping of finches, taking into account the time required to establish a captive breeding programme. The transitional arrangement expired in 2008.

The case concerns the live capture of seven species: chaffinch, linnet, goldfinch, greenfinch, hawfinch, serin and siskin.”

Published in The Malta Independent on Sunday – 27 September 2015

Il-prijorità li Joseph qatt ma kellu

Labour u l-Ambjent

Wara l-froġa tal-Cafè Premier, Joseph kien qalilna li l-affarijiet setgħu saru aħjar. Kien għadu qed jitgħallem!

Issa reġa’ għaffiġha.

Wara li s-soċjetà ċivili għal darba oħra semmgħet leħinha, Joseph qed jitlob li l-pubbliku jindikalu siti alternattivi fejn jista’ jpoġġi l-Universita “Amerikana”.  Qed iħokk rasu biex jara jsibx sit flok iż-Żonqor! Dan minkejja li gie dikjarat li intagħzlet l-art ODZ għax din tiswa’ inqas! Qalulna li kieku l-art tiswa’ iktar il-proġett ma jkunx vijabbli, jiġifieri l-investitur iħoss li ma jagħmilx biżżejjed qliegħ!

Fid-diskussjoni li għaddejja fil-pajjiż diġà ssemmew diversi siti. Uħud huma addattati iktar minn oħrajn!

Din x’serjetà hi li wara li tiddeċiedi u tkun ankè iffirmajt ftehim preliminari taparsi tikkonsulta? Konsultazzjoni bis-serjeta kienet tkun ferm differenti.  Gvern serju  kien jaħdem differenti.

Fuq is-sit elettroniku tal-uffiċċju tal-Prim Ministru Muscat qed jitlob proposti mill-pubbliku għal siti alternattivi għaż-Żonqor liema siti jridu josservaw 5 kriterji :

  1. jkunu fis-“South”,
  2. jkunu użabbli bħala Università internazzjonali,
  3. li l-qies tal-proposti jkun ta’ madwar 90,000 metru kwadru, avolja l-Gvern lest li jikkunsidra li dawn ikunu mqassma fuq iktar minn sit wieħed,
  4. li biex titwassal l-infrastruttura neċessarja fis-sit identifikat ma jkunx hemm bżonn interventi kbar,
  5. li s-siti ma jkunux soġġetti għal protezzjoni ambjentali, b’mod partikolari protezzjoni li tirriżulta minn Direttivi Ewropej (jsemmi tlett eżempji: Habitats Directive, Birds Directive, Water Framework Directive).

Issa kieku Muscat nieda din il-konsultazzjoni qabel ma iddeċieda kont bla dubju ngħid li kien ikun pass tajjeb. Imma li mexa b’dan il-mod wara li l-opinjoni pubblika ġabitu dahru mal-ħajt, il-proċess  jista’ jkun deskritt biss bħala farsa.

 

Fi ftit kliem dan mhux eżerċiżżju ta’ konsultazzjoni, iżda wieħed ta’ damage control.  Joseph qed ifittex li jsewwi l-ħsara li għamel billi għal darba oħra għaffeġ. Għax nesa li suppost għall-Labour fil-Gvern l-ambjent kellu jkun prijorità.

Għax ngħiduha kif inhi issa ma setax jibqa’ jgħidilna li l-affarijiet setgħu saru aħjar. Għax it-tweġiba ovvja tkun: kemm ser iddum ma titgħallem?

Il-billboard ta’ Audrey Harrison hu ħafna l-bogħod mill-prijorità ta’ Joseph. Għax l-ambjent qatt ma kien prijorità ta’ Joseph. Kieku l-ambjent kien prijorità għal Joseph, kien jibda mill-ewwel fuq sieq tajba!

A future for the birds

sample ballot

 

Next Saturday we will be voting to give a future to the wild birds that migrate to Malta. By removing from Malta’s statute book the legal notice that permits the spring hunting of quail and turtle dove, Maltese voters will bring Malta in line with its obligations.

Nowhere does the Conservation of Wild Birds Directive of the European Union or Malta’s treaty of adhesion to the European Union permit spring hunting as a sport. The basic rules in the Directive, in fact,  prohibit the killing of wild birds in spring. The only permissible exceptions are related to aviation safety, the protection of public health and safety, and the prevention of serious damage to livestock, agricultural crops, fisheries and water as well as the protection of flora and fauna. Hunting as a sport does not feature anywhere in the list of reasons as a result of which a derogation from the duties spelt out in the EU Directive is permissible. It is a Directive that deals with the conservation of wild birds and not with hunting!

The Conservation of Wild Birds Directive of the European Union has been an integral part of Maltese law since – and as a result of – Malta’s  accession to the EU in 2004. It expressly states that EU Member States along migratory bird routes have a far greater responsibility for the conservation of wild birds. This  responsibility is very clearly spelled out in article 7(4) of the Directive, where it is stated that : “In the case of migratory species, [Member States] shall see in particular that the species to which hunting regulations apply are not hunted during their period of reproduction or during their return to their rearing grounds.” This applies to all bird migratory routes throughout  EU territory without exception.

Prohibiting spring hunting is not a question of numbers. It is not an issue of establishing a number of birds that can be shot without such a shoot-out having an impact on the bird population. It is an issue of principle. And there should be no playing around with principles. Wild birds require protection during the time of year when they are most vulnerable – in the period leading up to, and during,  the breeding season, that is spring.

Besides, the populations of both quail and turtle dove do not have a favourable conservation status in the EU and, as a result, are subject to  management plans. The aim of these management plans is to restore the species to a favourable conservation status. The EU management plan for quail, for example, specifically states that “Spring hunting that overlaps with the return migration or the start of breeding should not be permitted under any circumstances.”

The EU Management Plan for turtle dove, on the other hand, states: “of particular concern is hunting during the spring migration, which is practiced outside the EU and (illegally) in some other Mediterranean countries.”

This is the subject of the referendum: the future of wild birds in Malta in the spring.

There are, however, other issues that will be decided as a result of the 11 April referendum. Banning spring hunting on Maltese territory will remove a major obstacle which is impeding  access to the countryside to our families because of the dangers and arrogance of the men with the guns.  It will put the bullies roaming the countryside in the spring in their proper place.

This bullying is still going on, because in recent days we have had one of the leaders of the hunting lobby stating that, in the event of a victory for the NO vote in the referendum, the abolition of spring hunting might be contested. It comes as no surprise that the hunting lobby has no respect for the democratic will of Malta’s voters. Its members have repeatedly been sending clear signals that they are allergic to the democratic process. For years, they have  been holding  the parliamentary political parties to ransom. They have also presented a petition requesting the practical abolition of the right to call an abrogative referendum. Fortunately, the government had the good sense to ignore that petition!

A No vote on 11 April is hence also a vote on democracy. It will give a clear message to everyone of the ability of Maltese voters to decide. In the process it will liberate the parliamentary political parties from the clutches of their blackmailers.

published in The Malta Independent on Sunday: 5 April 2015

The 11 April vote : not against hunters

 

kacca u voti

The issue to be decided upon on 11 April is whether Malta should accept or repeal the regulations that permit spring hunting.

In fact the question asked in the referendum is as follows : Do you agree that the provisions of the “Framework for Allowing a Derogation Opening a Spring Hunting Season for Turtle Dove and Quail Regulations” (Subsidiary Legislation 504.94) should continue in force?

On the 11 April we are expected to answer this question. A YES signifies agreement with spring hunting while a NO will abolish spring hunting from Malta’s statute book. It will also bring Malta in line with the Wild Birds Directive of the European Union.

The Wild Birds Directive is about the protection of biodiversity and not about facilitating hunting. As has been emphasised by university students on the campus this week, the focus of the referendum is sustainability. It is not about pleasing hunters but about our duties as a nation to protect wild birds. We have a duty, as a nation, to protect wild birds. We have a duty -all of us- to protect nature. In particular, we have a duty to prevent the loss of biodiversity.

Spring is the time when birds fly over Malta on their way to their breeding grounds. Malta, as one of the member states of the European Union along the route used by wild birds on their way to their rearing grounds, has a special responsibility to ensure that these birds are not hunted and can safely reach their destination.

The permissible exceptions are limited and very specific. These exceptions are known as “derogations”. The Wild Birds Directive permits the killing of wild birds during spring if these are a threat to aviation security. Likewise, the killing of wild birds in the spring is permissible if they are agricultural pests or else pose a sanitary threat. The Wild Birds Directive does not, in any way, permit the killing of birds for fun.

There are a number of inaccuracies being bandied around by the hunting lobby during this referendum campaign. They state, for example, that Malta has negotiated a derogation relative to spring hunting.  This is incorrect. No EU member has negotiated, or can negotiate, any spring hunting derogation. Derogations are not designed to suite the interests of individual states and the rules regulating such derogations are spelt out clearly and are applicable to all member states in equal measure.

The decision of the European Court of Justice (ECJ) in 2009 is also being grossly misinterpreted and quoted out of context. The ECJ decision does not in any way condone spring hunting. It does, in fact, chastise Malta for infringing the Wild Birds Directive during the period 2004-2007 and concludes that, by authorising spring hunting of quails and turtle doves  from 2004 to 2007, Malta has failed to comply with the Wild Birds Directive. (ECJ decision C-76/08 dated 9 September 2009) The reports on the derogations unilaterally taken by the Maltese government to permit spring hunting from 2008 to date are still being evaluated by the European Commission.

These are briefly the issues which the 11 April will decide. As a direct consequence of abolishing spring hunting, in addition to shouldering our responsibilities as a nation to protect wild birds during their breeding time we will have the added benefit of reclaiming the countryside during spring.

This abrogative referendum is a democratic tool which is being utilised for the first time by civil society in Malta. It is being used because, over the years, the parliamentary political parties preferred to listen to the hunting lobby which repeatedly warned them: “No hunting no vote”   and had them on a leash.

Maybe this time they will take heed, that even environmentalists have a vote.  It is not a vote against hunters, but a vote in favour of wild birds and their protection. It is a vote in favour of our environment and in favour of Malta .

published in the Malta Independent on Sunday: 22nd March 2015

11 April 2015 : Empowerment Day

empowerment

The spring hunting referendum called as result of a citizens’ petition and scheduled for 11 April 2015 will protect birds. It will honour a basic requirement spelled out in the EU’s Birds Directive, which insists on this protection along birds’ migratory routes on the way to their breeding grounds.

The spring hunting referendum signifies different things to different persons. It is first and foremost a concrete step in addressing a bird conservation issue which has been ignored throughout the years, despite Malta’s international obligations. It will also facilitate access to the countryside for one and all throughout spring. In addition it is also a democratic tool through which civil society stands up to the countryside bullies. When all three achievements are attained, and eventually taken for granted, there will be one lasting consequence: the spring hunting referendum will be the defining moment of empowerment of Maltese civil society.  It will be the gift of present day civil society to future generations.

When addressing Parliament on the abrogative referendum on 12 January, Prime Minister Joseph Muscat recognised this fact and declared that the dominant role of politicians in decision taking is changing (“naħseb li bħala politiċi irridu nifhmu li l-proċess li wassal għal dan ir-referendum huwa sinjal taż-żminijiet. Huwa sinjal li d-dominanza tal-politiċi fit-teħid tad-deċiżjonijiet qed tonqos.”)

On the 11 April civil society in Malta will come of age.

11 April will be the point when civil society realises that, at the end of the day, it is the source of all authority in decision taking structures. 11 April can be the day when this authority is  made use of to rectify past mistaken decisions.  In so doing, civil society in Malta will be giving notice to one and all that ultimately the common good can and will prevail.

When the petition calling for the abrogative referendum on spring hunting was doing the rounds, some thought that it was just another petition, which would be forgotten as soon as it was submitted. However, when the Constitutional Court delivered its decision on the 9 January giving the green light to the first abrogative referendum in the Maltese islands, the message was received clearly by one and all.

11 April means that change is possible. Moreover it also means that change is not dependent on general election results. The dormant authority of civil society is being reactivated.

Last Wednesday, a group of jurists led by former European Court of Human Rights Judge Giovanni Bonello explained to the press that the spring hunting referendum posed no threat to any hobby. In practically all cases which were listed in a study released by the group of jurists, it is evident that the abrogative referendum itself cannot even be applied to the said hobbies. Most hobbies are unregulated, meaning that there is no legislation of relevance to abrogate. In this respect the abrogative referendum procedure is not applicable!

As regards other hobbies like horse racing, the manufacture and letting off of fireworks and off-roading, existing laws and regulations specify who the licensing authorities are, and the rules to be followed. Subjecting these rules to an abrogative referendum would mean that these activities would be unfettered by regulations, if a hypothetical referendum were approved. That could not in any way be construed as a threat to such hobbies or pastimes.

The jurists were replying to the scaremongering campaign of the hunting lobby.

It is pretty obvious that the hunting lobby is not enthusiastic about citizens being empowered to call an abrogative referendum and decide, where applicable, contentious issues. They prefer to discuss issues behind closed doors, where they can lobby and barter their votes for concessions. This is what they did throughout the years and this is the essential background to the present state of affairs.

This is the reason why some months back the hunting lobby petitioned Parliament to overhaul the referendum legislation. In their petition they asked for protection of some imaginary “minority rights” which the Constitutional Court on 9 January, declared as being inexistent.

On 11 April, we will for the first time ever vote in an abrogative referendum called through a citizens’ initiative. We will decide whether we agree or not with the regulations which permit hunting of quail and turtledove in spring on their way to breed. I do not agree with spring hunting and will be voting NO.

I invite you to join me in voting NO, thereby abolishing spring hunting in Malta for the benefit of birds and future generations.

 

Published in The Malta Independent on Sunday – 1 February 2015

Protecting the birds, reclaiming the countryside

 

turtle doves just shot

The abolition of spring hunting will lead to the protection of birds when they most need it. All birds will be protected, not just the quail and turtle dove.  Birds need our protection during the spring as it is the time of the year when they breed or are preparing to breed. Every bird which is shot during spring signifies that there will be one less nest and consequently there will be fewer birds in the following seasons.

The Birds  Directive of the European Union is an integral part of Maltese law since, and as a result of, Malta’s EU  accession in 2004. The Directive expressly states that EU Member States along migratory bird routes have a far greater responsibility regarding bird protection. This responsibility is spelled out in article 7(4) of the Directive where it is very clearly stated that : “In the case of migratory species, [member states] shall see in particular that the species to which hunting regulations apply are not hunted during their period of reproduction or during their return to their rearing grounds.” This applies to all bird migratory routes throughout EU territory without exception.

The Birds Directive is not a Directive about hunting but about the protection of birds. It does, however, recognise that circumstances may arise as a result of which it may be necessary to permit an exception, which exception is called “a derogation”. Exceptions are very well defined in article 9(1) of the Birds Directive (vide box) and these are the only circumstances in respect of which an EU member state may derogate from its obligations under the Birds Directive. It follows that whilst EU members have the authority to permit an exception, such an exception, or derogation,  must be within the three general parameters determined by the Directive. It is not a right but a tool for addressing the specific situations mentioned in the Directive. Readers will very easily notice that the permissible derogations make no reference to the killing of birds for fun – commonly referred to as “hunting”.

Member states permit thousands of derogations in their territory every year. Derogations in respect of birds that are considered agricultural pests or a potential threat to the safety of aeroplanes are the most frequent cases where derogations are permitted. I am informed that the list of these thousands of derogations all over EU territory does not contain one single case which refers to a derogation for the purpose of sports during spring. Malta is the only exception.

Being on a migratory bird route means that Malta has an international responsibility to protect all birds returning to their rearing grounds to reproduce. This return occurs annually during spring, hence the need to abolish spring hunting. It is a duty we have towards the international community in respect of all the birds migrating through Maltese airspace.

The abrogative referendum, in respect of which Malta’s Constitutional Court decided that no valid objections had been filed, will ask voters whether or not they agree with the regulations that permit a spring hunting derogation for two specific species: turtle dove and quail. These regulations are contained in the Framework for Allowing a Derogation Opening a Spring Hunting Season for Turtle Dove and Quail Regulations, originally published in 2010.

Voting NO on the 11 April  will protect  birds migrating over Malta during spring as well as restore back to the public access to the countryside at that time of the year. It will also eliminate the negative impact (through the sound of gunfire and the trampling all over the countryside) which will further help to attract and allow other breeding birds (not just quail and turtle dove) to nest in our country.

Currently, Malta’s countryside is practically inaccessible during the spring hunting season as one runs the risk of being showered with hunters’ pellets. Maltese families have very little access to the countryside when hunters are enjoying their spring derogation- and a number of them shooting at anything that flies.

This means that Maltese families and their children are being deprived of enjoying nature in all its splendour. We are all entitled to enjoy the countryside, which belongs to us all and not just to a select few. This enjoyment is currently being obstructed by the spring hunting derogation which the Parliamentary parties have been defending continuously.  It is about time that we reclaimed our right to fully enjoy nature in spring, while simultaneously allowing birds to continue breeding.

A total of 41,494 citizens signed a petition which has resulted in the abrogative referendum that will be held on 11 April 2015. This is a unique opportunity to protect the birds and help re-establish our families’ links with nature during the spring.  Let us use this opportunity well by voting NO, thereby rejecting the regulations contained in the spring hunting derogation and consigning spring hunting in Malta to the dustbin of history.

article 9. derogation

 

published in the Independent – Sunday 18 January 2015

X’qalu l-kaċċaturi: kif wieġbet il-Qorti Kostituzzjonali (5)

eu-flag

5. It-trattat tal-EU u r-referendum

Il-ħames oġġezzjoni li kkunsidrat il-Qorti hi spjegata fil-paragrafu 32 tas-sentenza, ftit twil għax jikkwota silta twila mir-rikors tal-kaċċaturi. Fil-qosor  fir-rikors tal-kaċċaturi jingħad illi l-avviż legali dwar id-deroga tal-kaċċa fir-rebbiegħa huwa obbligu li jirriżulta mit-trattati Ewopej. Fir-rikors tagħhom il-kaċċaturi jgħidu li jekk dan l-avviż legali jitneħħa kif qed jitlob ir-referendum  Malta tkun qed tonqos milli twettaq l-obbligu tagħha li timplimenta d-Direttiva dwar l-Għasafar.

Is-sentenza tal-Qorti Kostituzzjonali twieġeb fit-tul  is-sottomissjonijiet tal-Kaċċaturi u fost affarijiet oħra fil-paragrafi 37 sa 39 tgħid hekk:

Il-qorti tosserva illi, min-natura tagħha, “deroga” hija mezz kif stat membru jkun jista’ ma jimplimentax għal kollox dak li trid direttiva jew liġi oħra ewropea. Jekk jitħarsu l-kondizzjonijiet li trid direttiva, deroga tkun mod leġittimu kif dan isir. Fil-każ tallum, il-L.S.504.94  [Legislazzjoni Sussidjarja, ċjoe r-regolamenti li jippermettu d-deroga tal-kaċċa fir-rebbiegħa] hija mezz kif l-istat malti jista’ leġittimament ma jimplimentax għalkollox id-Direttiva 2009/147/KE. [Direttiva dwar l-Għasafar]

Il-fatt iżda illi deroga hija leġittima – għax iseħħu l-kondizzjonijiet kollha li fihom tista’ tingħata – ma jfissirx illi – għax iseħħu l-istess kondizzjonijiet – hija obbligatorja. Fil-fatt, l-art. 9 tad-Direttiva 2009/147/KE – id-disposizzjoni li tippermetti d-deroga u tgħid f’liema ċirkostanzi tista’ tingħata – igħid ċar illi “L-Istati Membri jistgħu – u mhux “għandhom” – jidderogaw … … …”. Fi kliem ieħor: bid-deroga stat membru jista’ ma jimplimentax għalkollox id-Direttiva; mingħajrha, stat membru huwa marbut illi d-Direttiva jimplimentaha għalkollox u bla eċċezzjoni.

Taħt id-direttiva l-istat membru qatt ma hu obbligat li jimplimenta deroga, anqas meta jirrikorru ċ-ċirkostanzi li jippermettu tali deroga. Għandu għażla jimplimentahiex jekk iseħħu ċ-ċirkostanzi meħtieġa, u, jekk jimplimentaha, għandu obbligu li jħares il-kondizzjonijiet li skonthom trid tigi implimentata dderoga, iżda jekk – ukoll biex iwettaq rieda popolari espressa f’referendum – jagħżel li ma jfittixx deroga dan l-obbligu li jħares il-kondizzjonijiet tad-deroga ma jibqax relevanti għax l-istat ikun qiegħed, minflok, iħares l-obbligu li jwettaq fis-sħiħ id-direttiva. Wara kollox, id-Direttiva 2009/147/KE stess mhux biss ma tgħidx illi l-istati membri huma marbuta li jimplimentaw deroga meta din hija possibbli, iżda anzi tgħid fl-art. 14 illi “L-Istati Membri jistgħu jintroduċu miżuri protettivi aktar stretti minn dawk li hemm previsti f’din id-Direttiva”

Imbagħad il-Qorti Kostituzzjonali fil-paragrafu 50 tas-sentenza tgħaddi biex tgħid li:

 L-oġġezzjoni illi l-L.S. 504.94 hija “leġislazzjoni li tagħti seħħ lil xi obbligazzjoni derivanti minn trattat li jkollha sehem fih Malta” hija għalhekk miċħuda.

Min irid jidħol daqsxejn iktar fil-fond jaqra is-sentenza hawn, b’mod partiklari l-paragrafi  32 sa 50.

X’qalu l-kaċċaturi: kif wieġbet il-Qorti Kostituzzjonali (4)

euros floating in space

4. Il-ħlas ta’ liċenzja ma jagħmilx liġi waħda fiskali

Ir-raba’ oġġezzjoni li kkunsidrat il-Qorti Kostituzzjonali hi spjegata fil-paragrafu 29 tas-sentenza li jgħid hekk:

“Fir-raba’ oġġezzjoni l-Federazzjoni [FKNK] tgħid illi l-L.S. 504.94 [Legislazzjoni Sussidjarja, ċjoe r-regolamenti li jippermettu d-deroga tal-kaċċa fir-rebbiegħa] hija leġislazzjoni fiskali u għalhekk hija mħarsa taħt l-art. 16(1)(f) tal-Kap. 237 [Att dwar ir-Referendi]  . Tgħid illi hija leġislazzjoni fiskali għax min imur għall-kaċċa għandu jkollu liċenza li biex jiksibha jrid iħallas.”

Għal din ir-raba’  oġġezzjoni l-Qorti Kostituzzjonali twieġeb hekk fil-paragrafi  30, u 31 tas-sentenza:

“Leġislazzjoni fiskali hija dik, bħall-Att dwar it-Taxxa fuq l-Income jew l-Att dwar it-Taxxa fuq il-Valur Miżjud, illi l-għan ewlieni tagħha huwa l-ġbir ta’ flus għall-erarju. Liġi ma titqiesx leġislazzjoni fiskali għar-raġuni biss illi taħseb għal ħlas ta’ dritt talli jingħata servizz speċifiku bħal ma hu l-ħruġ ta’ liċenza. L-għan ewlieni tal-L.S. 504.04 [Legislazzjoni Sussidjarja, ċjoe r-regolamenti li jippermettu d-deroga tal-kaċċa fir-rebbiegħa] ma huwiex il-ġbir ta’ flus iżda r-regolamentazzjoni meħtieġa biex tista’ ssir deroga taħt id-Direttiva 2009/147/KE. [Direttiva dwar l-Għasafar]

Billi għalhekk il-L.S. 504.04 [Legislazzjoni Sussidjarja, ċjoe r-regolamenti li jippermettu d-deroga tal-kaċċa fir-rebbiegħa] ma tistax titqies leġislazzjoni fiskali, ir-raba’ oġġezzjoni wkoll hija miċħuda.”

Malta’s EU story : the environment

JOINT SEMINAR BY THE OFFICE OF THE EUROPEAN PARLIAMENT IN MALTA AND THE TODAY PUBLIC POLICY INSTITUTE

Friday 3 October 2014

address by Carmel Cacopardo

eu-flag

 

Since Malta’s EU accession there has been a marked contrast of interest in issues related to environmental governance.

EU accession has generally had a positive influence on Maltese environmental governance.  A flow of EU funds has been applied to various areas which Maltese governments throughout the years did not consider worthy of investing in.  On the one hand we had governments “occasionally” applying the brakes, seeking loopholes, real or imaginary,  in order to ensure that lip service  is not accidentally translated into meaningful action. On the other hand civil society has, in contrast, and  as a result of EU accession identified a new source of empowerment, at times ready to listen, however slow to react and at times ineffective.

Land use planning and abusive hunting/trapping have for many years been the main items on the local environment agenda. Water, air quality, climate change, alternative energy, biodiversity, noise, light pollution, organic agriculture, waste management and sustainable development have rightfully claimed a place in the agenda during the past 10 years. Some more frequently, others occasionally.

Land use planning has been on the forefront of civil society’s environmental agenda for many years. Abusive land use planning in the 80s fuelled and was fuelled by corruption. It led to various public manifestations in favour of the environment then equated almost  exclusively with the impacts of land development. Many such manifestations ended up in violence. Whilst this may be correctly described as history, it is occasionally resurrected  as in the recent public manifestation of hunters protesting against the temporary closure of the autumn hunting season.

Whilst hunting and land use planning may still be the main items on Malta’ environmental agenda the ecological deficit which we face is substantially deeper and wider.  It is generally the result of myopic policies.

For example it is well known that public transport has been practically ignored for the past 50 years, including the half-baked reform of 2010. This is the real cause of Malta’s very high car ownership (around 750 vehicles per 1000 population). As the Minister of Finance rightly exclaimed during a pre-budget public consultation exercise earlier this week traffic congestion is a major issue of concern, not just environmental but also economic. Impacting air quality, requiring additional land uptake to construct new roads or substantial funds to improve existing junctions traffic congestion is a drain on our resources. May I suggest that using EU funds to improve our road network  will delay by several years the shifting of custom to public transport, when we will have one which is worthy of such a description.

The mismanagement of water resources over the years is another important issue. May I suggest that millions of euros in EU funds have been misused  to institutionalise the mismanagement of water resources. This has been done through the construction of a network of underground tunnels to channel stormwater to the sea.  The approval of such projects is only possible when one  has no inkling of what sustainable management of water resources entails. Our ancestors had very practical and sustainable solutions: they practised water harvesting through the construction of water cisterns beneath each and every residence, without exception. If we had followed in their footsteps the incidence of stormwater in our streets, sometimes having the smell of raw sewage due to an overflowing public sewer, would be substantially less. And in addition we would also avoid overloading our sewage purification plants.

Our mismanagement of water resources also includes the over-extraction of ground water and the failure to introduce an adequate system of controls throughout the years such that  most probably there will be no more useable water in our water table very shortly. In this respect the various deadlines established in the Water Framework Directive would be of little use.

Whilst our Cabinet politicians have developed a skill of trying to identify loopholes in the EU’s acquis (SEA and Birds Directive) they also follow bad practices in environmental governance.

It is known that fragmentation of environmental responsibilities enables politicians to pay lip service to environmental governance but then creating real and practical obstacles in practice.

Jean Claude Juncker, the President elect of the EU Commission has not only diluted environmental governance by assigning responsibility for the environment together with that for fisheries and maritime policy as well as assigning energy with climate change. He has moreover hived off a number of responsibilities from the DG Environment to other DGs namely Health and Enterprise.

In Malta our bright sparks have anticipated his actions. First on the eve of EU accession they linked land use planning with the Environment in an Authority called MEPA with the specific aim of suffocating the environment function in an authority dominated by development. Deprived of human resources including the non-appointment of a Director for the Environment for long stretches of time, adequate environmental governance could never really get off the ground.

Now we will shortly be presented with the next phase: another fragmentation by the demerger of the environment and planning authority.

In the short time available I have tried to fill in the gaps in the environment section of the document produced by The Today Public Policy Institute. The said document rightly emphasises various achievements. It does however state that prior to EU accession the environment was not given its due importance by local policy makers. Allow me to submit that much still needs to be done and that the progress made to date is insufficient.