Sofia Zoo v Országos Környezetvédelmi, Természetvédelmi és Vízügyi Főfelügyelőség.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Date: 04 September 2014

JUDGMENT OF THE COURT (Second Chamber)

4 September 2014 (*1 )

‛Reference for a preliminary ruling — Protection of species of wild fauna and flora — Regulation (EC) No 338/97 — Article 11 — Invalidity of an import permit restricted to the specimens of animals actually affected by the ground of invalidity’

In Case C‑532/13,

REQUEST for a preliminary ruling under Article 267 TFEU from the Fővárosi közigazgatási és munkaügyi bíróság (Hungary), made by decision of 20 September 2013, received at the Court on 9 October 2013, in the proceedings

Sofia Zoo

v

Országos Környezetvédelmi, Természetvédelmi és Vízügyi Főfelügyelőség,

THE COURT (Second Chamber),

composed of R. Silva de Lapuerta, President of the Chamber, K. Lenaerts (Rapporteur), Vice-President of the Court, J.L. da Cruz Vilaça, J.-C. Bonichot and A. Arabadjiev, Judges,

Advocate General: E. Sharpston,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

— the Hungarian Government, by K. Szíjjártó and by M. Fehér and G. Szima, acting as Agents,

— the Belgian Government, by J. Van Holm and T. Materne, acting as Agents,

— the European Commission, by K. Mifsud-Bonnici and A. Sipos, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 11(2)(a) and (b) of Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein (OJ 1997 L 61, p. 1).

2 The request has been made in proceedings between Sofia Zoo (Bulgaria) and the Országos Környezetvédelmi, Természetvédelmi és Vízügyi Főfelügyelőség (Inspectorate General of the State for the conservation of the environment and nature and for the administration of water) (Hungary) (‘the Inspectorate General’), concerning the latter’s decision to order the confiscation of 17 specimens of wild animals originating from Tanzania.

Legal context

The Convention on International Trade in Endangered Species of Wild Fauna and Flora

3 The Convention on International Trade in Endangered Species of Wild Fauna and Flora, signed in Washington on 3 March 1973 (United Nations Treaty Series, vol. 993, No I‑14537) (‘CITES’) seeks to ensure that international trade in species listed in its appendices, and in parts and derivatives thereof, does not damage the conservation of biodiversity and is based on a sustainable use of wild species.

4 That convention was implemented in the European Union as from 1 January 1984 by virtue of Council Regulation (EEC) No 3626/82 of 3 December 1982 on the implementation in the Community of the Convention on international trade in endangered species of wild fauna and flora (OJ 1982 L 384, p. 1). That regulation was repealed by Regulation No 338/97, the second paragraph of Article 1 of which provides that that regulation is to apply in compliance with the objectives, principles and provisions of CITES.

5 Article VI(5) of CITES states: ‘A separate permit or certificate shall be required for each consignment of specimens.’

EU law

6 Recitals 5 and 17 in the preamble to Regulation No 338/97 are worded as follows: (5) ... the implementation of this Regulation necessitates the application of common conditions for the issue, use and presentation of documents relating to authorisation of the introduction into the [Union] and the export or re-export from the [Union] of specimens of the species covered by this Regulation; ... it is necessary to lay down specific provisions relating to the transit of specimens through the [Union]; ... (17) ..., in order to guarantee compliance with this Regulation, it is important that Member States impose sanctions for infringements in a manner which is both sufficient and appropriate to the nature and gravity of the infringement’.

7 Article 4 of that regulation provides: ‘1. The introduction into the [Union] of specimens of the species listed in Annex A shall be subject to completion of the necessary checks and the prior presentation, at the border customs office at the point of introduction, of an import permit issued by a management authority of the Member State of destination. The import permit may be issued only in accordance with the restrictions established pursuant to paragraph 6 and when the following conditions have been met: ... (b) (i) the applicant provides documentary evidence that the specimens have been obtained in accordance with the legislation on the protection of the species concerned which, in the case of import from a third country of specimens of a species listed in the Appendices to the Convention, shall be an export permit or re-export certificate, or copy thereof, issued in accordance with the Convention by a competent authority of the country of export or re-export; ... ... (e) the management authority is satisfied, following consultation with the competent scientific authority, that there are no other factors relating to the conservation of the species which militate against issuance of the import permit; and (f) in the case of introduction from the sea, the management authority is satisfied that any live specimen will be so prepared and shipped as to minimise the risk of injury, damage to health or cruel treatment. 2. The introduction into the [Union] of specimens of the species listed in Annex B shall be subject to completion of the necessary checks and the prior presentation, at the border customs office at the point of introduction, of an import permit issued by a management authority of the Member State of destination. The import permit may be issued only in accordance with the restrictions established pursuant to paragraph 6 and when: (a) the competent scientific authority, after examining available data and considering any opinion from the Scientific Review Group, is of the opinion that the introduction into the [Union] would not have a harmful effect on the conservation status of the species or on the extent of the territory occupied by the relevant population of the species, taking account of the current or anticipated level of trade. This opinion shall be valid for subsequent imports as long as the abovementioned aspects have not changed significantly; (b) the applicant provides documentary evidence that the intended accommodation for a live specimen at the place of destination is adequately equipped to conserve and care for it properly; (c) the conditions referred to in paragraph 1(b)(i), (e) and (f) have been met. ... 6. In consultation with the countries of origin concerned, in accordance with the regulatory procedure referred to in Article 18(2) and taking account of any opinion from the Scientific Review Group, the [European] Commission may establish general restrictions, or restrictions relating to certain countries of origin, on the introduction into the [Union]: (a) on the basis of the conditions referred to in paragraph 1(a)(i) or (e), of specimens of species listed in Annex A; (b) on the basis of the conditions referred to in paragraph 1(e) or paragraph 2(a), of specimens of species listed in Annex B; and (c) of live specimens of species listed in Annex B which have a high mortality rate during shipment or for which it has been established that they are unlikely to survive in captivity for a considerable proportion of their potential life span; or (d) of live specimens of species for which it has been established that their introduction into the natural environment of the [Union] presents an ecological threat to wild species of fauna and flora indigenous to the [Union]. The Commission shall on a quarterly basis publish a list of such restrictions, if any, in the Official Journal of the European [Union]. ...’

8 Article 9(4) and (5) of that regulation provides: ‘4. Where a live specimen of a species listed in Annex B is moved within the [Union], the holder of the specimen may relinquish it only after ensuring that the intended recipient is adequately informed of the accommodation, equipment and practices required to ensure the specimen will be properly cared for. 5. When any live specimens are transported into, from or within the [Union] or are held during any period of transit or transhipment, they shall be prepared, moved and cared for in a manner such as to minimise the risk of injury, damage to health or cruel treatment and, in the case of animals, in conformity with [Union] legislation on the protection of animals during transport.’

9 Article 11(1) and (2) of that same regulation, entitled ‘Validity of and special conditions for permits and certificates’, provides: ‘1. Without prejudice to stricter measures which the Member States may adopt or maintain, permits and certificates issued by the competent authorities of the Member States in accordance with this Regulation shall be valid throughout the [Union]. (a) However, any such permit or certificate, as well as any permit or certificate issued on the basis of it, shall be deemed void if a competent authority or the Commission, in consultation with the competent authority which issued the permit or certificate, establishes that it was issued on the false premiss that the conditions for its issuance were met. (b) Specimens situated in the territory...