International Trade in Species of Wild Fauna and Flora

International trade in endangered species has, since the 1970s, been regulated through the Convention on International Trade in Endangered Species of Wild Fauna and Flora, better known as ‘CITES’.62 The Member States are parties to the

Convention and since 2015 the EU has been as well. It was only in 2013, when an amendment to the Convention came into force, that it became possible for a so-called regional economic integration organisation to become a party, but the Union had already for many years implemented the provisions of the Convention as if it was a party. The first piece of EU legislation implementing CITES dates from 1982.^{[1] [2] [3]} Since 1997 CITES has been implemented mainly through Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein.6⁴ It is supplemented by, inter alia, a Commission regulation from 2006.65

Regulation 338/97 only applies to trade with third countries and does not affect the free movement of goods within the Union. It is based on a treaty provision corresponding to the current article 192(1) TFEU and has four annexes (A through D), three of which roughly correspond to the appendices of CITES (I through III). The Regulation shall apply in compliance with the objectives, principles, and provisions of CITES. However, the Regulation has one annex (Annex D), which lists species not covered by CITES but which are imported into the EU in such numbers as to warrant monitoring. (Art 3.)

There are also some other discrepancies between the CITES appendices and the annexes of the Regulation due to the fact that the EU has decided to regulate some species more strictly than is provided for by CITES and also, in a few cases, because EU Member States have entered reservations against a CITES listing.

CITES regulates trade in endangered species by dividing them into three categories, each listed in its own appendix. Species listed in Appendix I to CITES are all species threatened with extinction which are or may be affected by trade. International trade in specimens of these species shall be prohibited, although exemptions can be made for non-commercial trade. Appendix II contains species which, although not necessarily now threatened with extinction, may become so unless trade in specimens of those species is subject to strict regulation. International trade in specimens of these species may be authorised by the granting of an export permit. The species in Appendix III have been listed at the request of individual CITES Parties which themselves regulate trade in these species and need the cooperation of other Parties to prevent unsustainable or illegal exploitation.

Specimens of the species listed in Annex A or B of the Regulation (largely corresponding to appendix I and II of CITES) may be introduced into the EU only once the necessary checks have been completed and an import permit issued by the designated authority of the Member State of destination has been presented at the border customs office at the point of introduction. The preconditions for issuing an import permit are set out in Article 4 of the Regulation. With respect to species listed in Annexes C and D, an import notification replaces the import permit.

Export or re-export of specimens of the species listed in Annexes A to C also require a permit certificate issued by an authority of the Member State in which the specimens are located. (Art 5.)

Commercial activities involving the species listed in Annex A shall be prohibited. Exemptions may, where certain conditions are met, be granted by a competent authority in the Member State in which the specimens are located on a case-by-case basis. The Commission can also define general derogations from the prohibition. Any movement within the EU of a live specimen of a species listed in Annex A from the location indicated in the import permit requires prior authorisation from an authority of the Member State in which the specimen is located. (Arts 8—9.)

Permits and certificates issued by the competent authorities of the Member States in accordance with the Regulation are valid throughout the EU. But since the Regulation only establishes a minimum level of protection, individual Member States may adopt stricter measures restricting entry of specimens into their territories even if that would be inconsistent with the Regulation. Such stricter measures must be compatible with the rules on free movement of goods within the Union. (Art 11.)

The Commission may amend Annexes A to D and also make certain other amendments in accordance with the regulatory procedures defined in Articles 18 and 19.

The EU has also adopted a few other legal acts relating to international trade in certain animals and products derived from them. These concern whales or other cetacean products,^[4] skins of certain seal pups and products derived therefrom,^{[5] [6] [7]} seal products more generally/⁸ and pelts and manufactured goods of certain wild animal species originating in countries which catch them with methods which do not meet international humane trapping standards.69 These pieces of legislation aim to protect populations or individual animals against hunting in general or hunting by means of certain methods. That such rules can be legally problematic, particularly when they are not reflective of international agreements providing for trade restrictions, has been discussed in Chapter 2.

• [1] Council Regulation (EEC) No 3626/82 on the implementation in the Community of theConvention on international trade in endangered species of wild fauna and flora [1982] OJ L 384/1.
• [2] 64 [1997] OJ L 61/1.
• [3] Commission Regulation (EC) No 865/2006 laying down detailed rules concerning the implementation of Council Regulation (EC) No 338/97 on the protection of species of wild fauna and floraby regulating trade therein [2006] OJ L 166/1.
• [4] Council Regulation (EEC) No 348/81 on common rules for imports of whales or other cetaceanproducts [1981] OJ L 39/1.
• [5] Council Directive 83/ 129/EEC concerning the importation into Member States of skins of certain seal pups and products derived therefrom [1983] OJ L 91/30.
• [6] Regulation (EC) No 1007/2009 of the European Parliament and of the Council on trade in sealproducts [2009] OJ L 286/36.
• [7] Council Regulation (EEC) No 3254/91 prohibiting the use of leghold traps in the Communityand the introduction into the Community of pelts and manufactured goods of certain wild animal species originating in countries which catch them by means of leghold traps or trapping methods whichdo not meet international humane trapping standards [1991] OJ L 308/1.