Opinion of Advocate General Medina delivered on 3 March 2022.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:159
• Date: 03 March 2022
• Celex Number: 62020CC0659
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

MEDINA

delivered on 3 March 2022(1)

Case C‑659/20

ET

v

Ministerstvo životního prostředí

(Request for a preliminary ruling from the Nejvyšší správní soud (Supreme Administrative Court, Czech Republic)

(Reference for a preliminary ruling – Article 267 TFEU – Protection of species of wild fauna and flora by regulating trade therein – Regulations (EC) No 338/97 and (EC) No 865/2006 – Exemptions from the prohibition of commercial activities – Captive-born and -bred specimens of an animal species – Concept of ‘breeding stock’ – Establishment of the ancestry of the breeding stock)

Introduction

1. ‘Wild fauna and flora in their many beautiful and varied forms are an irreplaceable part of the natural systems of the earth which must be protected for this and the generations to come’. That fundamental statement is made in the preamble to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (‘CITES’). (2)

2. CITES is an international environmental treaty pursuing the objective of protecting certain species of wild fauna and flora from over-exploitation through international trade. Commentators have described it as ‘arguably the most successful of all international treaties concerned with the conservation of wildlife’, while nevertheless acknowledging that ‘problems most certainly still exist’. (3) More particularly, illegal wildlife trafficking ‘continues to be a major concern’. (4) The value of illegal trade worldwide is estimated by some to be between 7 and 23 thousand million United States dollars (USD) per year. (5) The most recent UN World Wildlife Crime Report shows wildlife crime to be a business that is ‘global; lucrative, with high demand driving high prices; and extremely widespread’. (6) That same report highlights the links between the global health crisis and the illegal exploitation of wildlife and considers the end to wildlife crime to be an ‘essential part of building back better from the COVID-19 crisis’. (7)

3. It is against the backdrop of those general considerations that I intend to pursue the analysis of the request for a preliminary ruling submitted by the Nejvyšší správní soud (Supreme Administrative Court, Czech Republic). That request concerns the interpretation of two EU regulations pursuing the objective of protecting species of wild fauna and flora and guaranteeing their conservation through controls on international trade in specimens of those species, namely Council Regulation (EC) No 338/97 (8) and Commission Regulation (EC) No 865/2006. (9)

4. Regulation No 338/97 lays down certain derogating provisions applicable to captive-born and -bred specimens of animal species listed in Annex A to that regulation. The main issue raised in the present case is essentially whether, for the purpose of determining whether specimens qualify for an exemption from the prohibition of trade applicable to captive-bred specimens of an animal species, the competent authorities may verify the origin of the breeding stock even where that examination extends beyond the specimens which the breeder lawfully acquired. As I intend to demonstrate in my analysis, the authorities should have the power to do so in order to determine whether the exemption should be granted.

Legal framework

International law

CITES

5. The object of CITES is to protect certain endangered species of wild fauna and flora by regulating international trade. It lays down separate rules protecting different species, divided into three categories corresponding to the three appendices to the convention and according to how great the threat of extinction is for them.

6. That convention, to which the European Union became a party on 8 July 2015, was implemented in the European Union as from 1 January 1984 by virtue of Council Regulation (EEC) No 3626/82. (10) That regulation was repealed by Regulation No 338/97.

7. Appendix I to CITES includes the most endangered species, with the strictest rules on protection. Pursuant to Article II(1) of CITES, trade in specimens of those species must be authorised only in ‘exceptional circumstances’.

8. Pursuant to Article II(2)(a) of CITES, Appendix II to that convention includes ‘all species which although not necessarily now threatened with extinction may become so unless trade in specimens of such species is subject to strict regulation in order to avoid utilisation incompatible with their survival’. The requirements for imports of Appendix II species are less stringent compared to those which apply to Appendix I species.

9. Article VII(4) of CITES provides that specimens of an animal species included in Appendix I and bred in captivity for commercial purposes are to be deemed to be specimens of species included in Appendix II.

European Union law

Regulation No 338/97

10. Article 1 of Regulation No 338/97 states that its object is to protect species of wild fauna and flora and to guarantee their conservation by regulating trade therein. It also states that it is to apply in compliance with the objectives, principles and provisions of CITES.

11. Article 2 of that regulation contains the following definitions:

‘…

(g) “management authority” shall mean a national administrative authority designated, in the case of a Member State, in accordance with Article 13(1)(a)…

…

(s) “species” shall mean a species, subspecies or population thereof;

(t) “specimen” shall mean any animal or plant, whether alive or dead, of the species listed in Annexes A to D …

…’

12. Article 8 of Regulation No 338/97 provides:

‘1. The purchase, offer to purchase, acquisition for commercial purposes, display to the public for commercial purposes, use for commercial gain and sale, keeping for sale, offering for sale or transporting for sale of specimens of the species listed in Annex A shall be prohibited.

…

3. In accordance with the requirements of other Community legislation on the conservation of wild fauna and flora, exemption from the prohibitions referred to in paragraph 1 may be granted by issuance of a certificate to that effect by a management authority of the Member State in which the specimens are located, on a case-by-case basis where the specimens:

….

(d) are captive-born and bred specimens of an animal species or artificially propagated specimens of a plant species or are parts or derivatives of such specimens; …

…’

Regulation No 865/2006

13. Article 1(3) of Regulation No 865/2006 contains the following definition:

‘“breeding stock” means all the animals in a breeding operation that are used for reproduction;’

14. Article 54 of Regulation No 865/2006, headed ‘Specimens born and bred in captivity of animal species’, provides:

‘Without prejudice to Article 55, a specimen of an animal species shall be considered to be born and bred in captivity only if a competent management authority, in consultation with a competent scientific authority of the Member State concerned, is satisfied that the following criteria are met:

…

(2) the breeding stock was established in accordance with the legal provisions applicable to it at the time of acquisition and in a manner not detrimental to the survival of the species concerned in the wild;

…’

Facts, procedure and the questions referred

15. The applicant is a parrot breeder. He applied, on 21 January 2015, for an exemption from the prohibition of trade in respect of five specimens of the hyacinth macaw (Anodorhynchus hyacinthinus) bred by the applicant and born in 2014. That species is listed in Annex A to Regulation No 338/97 and in Appendix I to CITES. The competent management authority refused to grant the application, based on an opinion of the competent scientific authority.

16. For the purpose of its assessment, the competent management authority made the following findings regarding the origin of the parrots subject to evaluation. The grandparents of the parrots (‘the grandparent specimens’) were imported by a Uruguayan national to Bratislava (Slovakia) in June 1993 under suspicious circumstances. The grandparent specimens were subsequently transferred by car to the Czech Republic by FU. At the border, the car was stopped by customs authorities and the grandparent specimens were confiscated from FU by means of an administrative decision. That administrative decision was, however, overturned by the Vrchní soud v Praze (High Court, Prague, Czech Republic) in 1996.

17. The authorities returned the grandparent specimens to FU who then lent them to GV. GV bred the parents of the parrots in question (the ‘parent specimens’) in 2000 and subsequently returned the grandparent specimens to FU, who in turn handed them over to the Zlín Zoo (Zlín, Czech Republic). The applicant obtained the parent specimens from GV in 2000. The validity of the transfer of ownership of the parent specimens to the applicant is not contested.

18. The scientific authority assessed whether the parent specimens qualified for exemption from the prohibition of trade applicable to captive-bred specimens of an animal species in accordance with the conditions laid down in Article 54(2) of Regulation No 865/2006. According to that provision, the breeding stock has to be established ‘in accordance with the legal provisions applicable to it at the time of acquisition and in a manner not detrimental to the survival of the species concerned in the wild’. The scientific authority recommended that the exemption not be granted. In its view, there were discrepancies in the registration documents pertaining to the grandparent specimens and, furthermore, no information about the origin of the parent specimens was provided.

19. Based on the opinion of the scientific authority, the competent management authority refused to grant an exemption permitting the trade of the specimens in question. The applicant brought an appeal against that decision before the Ministerstvo životního prostředí (Ministry of the Environment...