C-182/89

2. The Commission of the European (i) it is clear, or where the applicant Communities considers that by so doing the presents trustworthy evidence, that the French Republic failed to fulfil its obli- capture or collection of the specimens gations under Council Regulation (EEC) in the wild will not have a harmful No 3626/82 of 3 December 1982 on the effect on the conservation of species or implementation in the Community of the on the extent of the territory occupied Convention on international trade in by the populations in question of the endangered species of wild fauna and flora species, (Official Journal 1982 L 384, p. 1). This Convention is also known as the 'Wash- ington Convention' or 'CITES'. (ii) the applicant provides proof by means of documents issued by the competent authorities of the country of origin that the specimen has been obtained in 3. The adoption of Regulation No 3626/82 accordance with the legislation on the was necessary in order to coordinate the protection of the species in question, commercial policy measures entailed by the fact that the majority of the Member States are parties to the Convention even though the Community as such is not. It provides in (iii) in the case of the importation of a particular for the Member States to issue living animal, the applicant provides various certificates and permits in order to evidence that the intended recipient ensure adequate control of trade in the possesses adequate facilities suitable for species listed in the Convention subject to accommodating the species and suited conditions which are stricter in some cases to its behaviour and that the animal than in others. will be properly cared for, * Original language: French.

5. The Commission considers that the defendant issued the import permits in 8. It was not until it met in Lausanne from question without the conditions laid down 28 October to 1 November 1985 that the in Article 10(l)(b) being satisfied and in CITES Standing Committee stated that it support of its claim sets out the factual was prepared to consider that the measures context in which the decision was adopted. subsequently adopted by the Bolivian Government were significant. Accordingly it requested the Secretariat to recommend that the contracting parties which had imposed 6. The competent French authorities issued an import ban on specimens from Bolivia the documents in question on 6 February should consider suspending it. Its opinion 1986, but the documents refer to export was notified to the parties by the Secretariat permits issued by the Bolivian authorities on on 17 December 1985. 5 August 1985. The Commission states that at that time there were considerable diffi- culties which prevented the system introduced by the Convention from func- tioning in Bolivia and consequently, on 9. The CITES Committee of the 30 April 1985, a resolution was adopted at Community, which was established under the Fifth Conference of the contracting Article 19 of the regulation to ensure that parties to the Convention in Buenos Aires, the regulation was properly applied, which recommended that all the parties: discussed the situation at a meeting between 12 and 14 November 1985.

be established, which implied that Bolivia 15. In my view, the extract of the summary would not issue export permits for skins of report of the meeting of the CITES those two species until the necessary Standing Committee which was held at scientific and trade data were available. The Lausanne between 28 October and Commission would inform the Member 1 November 1985 is not entirely clear. It States of any decisions in that respect. The might be inferred from it that the resolution quotas set would apply to all exports of 30 April 1985 was from then on to be between 1 May 1985 and 30 April 1986 and considered to be withdrawn, at least with would not be higher than 50% of the regard to exports accompanied by Bolivian average annual legal exports from Bolivia permits issued after that meeting. Except over the previous five years. with regard to skins of caiman crocodiles (see point 5 of the Notification to the parties dated 17 December 1985), the CITES Secretariat recommends the suspension of the import ban not because of 11. It is common ground that some the introduction of quotas but because of Member States did not agree to these draft the 'significant measures' already taken by Minutes. At the hearing, the French the Government of Bolivia, namely new Government denied that there had been any legislation to ban the export or re-export of question at this meeting of quotas for the live fauna, the establishment of a high-level two species in question. committee to supervise CITES implemen- tation, the measures already taken to obtain scientific advice and the agreement of the Bolivian authorities to submit copies of all export permits to the Secretariat (see the 12. The Commission claims that a second and third paragraphs of the extract disagreement existed solely in regard to the from the report). The letter accompanying percentage of 50%, that the basic solution this extract of the report also refers, among provided for in the draft report was other new factors, to the fact that from now therefore agreed and that consequently on CITES permits issued by Bolivia will imports could still not be resumed. have to be signed by the Jefe nacional de vida silvestre, the management authority, and the Directeur général du Centro de desarrollo forestal, the scientific authority (emphasis in the original, namely point 4 of the Notification to the parties). 13. The Commission therefore considers that the French authorities responsible for issuing import permits could not reasonably have considered that the contested application satisfied the criteria laid down in Article 10(1)(b).

no limit had been set for exports of wild-cat species included in Appendix II is subject skins, imports of such skins should have only to presentation of an export permit been refused until the conclusions of a field (Article IV), the importation of the species study on the species became available. included in Part 2 of Annex C to the regu- lation is subject to an import permit as well. Felis geojfroyi and Felis wiedii, which were at the time included in Appendix II to the Convention, 1 were classified in Part 2 of Annex C to the regulation.

According to expired on 30 July 1985, without the Article 10 of the regulation, by contrast, it Bolivian Government having taken measures must be 'clear . . . that the capture . . . of the regarded as satisfactory by the CITES auth- specimen . . . will not have a harmful effect on orities.) Furthermore, and in particular, the the conservation of species or on the extent issue in the present case is whether the of the territory occupied2 by the populations French Republic complied with Article in question of the species'. 10(1)(b) of Council Regulation No 3626/82, which imposes on the Member States stricter obligations than those fixed by the Washington Convention.

18. Accordingly, the Community decided to specimen had been obtained in accordance treat certain species listed in Appendix II to with the legislation on protection of the the Washington Convention as if they species in question. In my view, that is not appeared in Appendix I: these are the the case. species listed in Part 1 of Annex C to the regulation. Secondly, whereas according to 1 — They have since been transferred to Appendix I to the Convention. the Convention the importation of the 2 — None of these words is emphasized in the original.

'the Bolivian Government's undertaking to 25. Under the regulation, the issue of an reduce CITES exports of each species to import permit does not depend upon the 50% of the average in the last five years'. opinion of the national scientific authority in the country of importation, which is not even referred to in Article 10. The regu- lation states only, in Article 8, that 'the 23. I consider that in the light of this competent authorities' of the Member States resolution and the discussions which took are themselves to issue the permits, subject place between the Member States in Buenos to the conditions laid down in Article 10. Aires after the resolution was adopted, the The Washington Convention itself provides deliberations of the CITES Standing for an opinion to be given by the scientific Committee at Lausanne (28 October to 1 authority of the importing State only in the November 1985) and of the EEC case of the species in Appendix I (see

I-4352

COMMISSION v FRANCE

32. The defendant also states that it was for the Commission, if it considered that the 28. The defendant states that in reality the conditions in Article 10 were not satisfied, Commission is accusing it not of infringing to adopt the necessary ban on the basis of Regulation No 3626/82 but of failing to Article 21(l)(b) of the regulation. This implement the recommendation of the provision provides as follows: CITES Conference, whereas it has not been established that it was bound by that recom- mendation. The Commission sought to make it a binding measure through its telex 'In accordance with the procedure laid message of 30 April 1985. down in paragraphs 2 and 3, the committee s h a l l . . . lay down uniform conditions for the issue of the documents referred to in Articles 10 and 11.' 29. This argument cannot in my view be accepted. The applicant states very clearly that the telex message in question was The Commission also considers that this merely a warning to inform the Member provision permits it to adopt such a ban. States that, in the Commission's opinion, However, like the defendant, it raises no

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36. The defendant also states that under French administrative law it is not possible 34. The defendant further contends that a to withdraw retroactively an individual refusal to grant the import permits applied measure that is lawful and has created for would not have been justified since the rights. This consideration cannot, however, recommendation adopted by the Conference have any influence on the existence of the of the contracting parties and all the contested breach of obligations, even if it measures required of Bolivia were not affects the means by which it may be directly linked to the survival of the species remedied. It is clear from Article 171 of the but rather to the need to sanction the Treaty that a Member State which has been Bolivian authorities for their inadequate found by the Court to have failed to fulfil implementation of the Convention. its obligations must take the necessary measures to comply with the judgment of the Court, and the Court has consistently held that the defendant cannot free itself of an obligation imposed on it under 35. I do not share that view. It should be Community law by relying on 'provisions, stressed that the Convention provides for practices or situations in its domestic legal administrative measures solely with a view system'. 5Furthermore, and in particular, it should be stressed that the individual 3 — See Commission Regulation (EEC) N o 2496/89 of 2 measure in question infringed a Community August 1989 on a prohibition on importing raw and worked ivory derived from the African elephant into the regulation that is directly applicable under Community (OJ L 240, p. 5). Article 189 of the Treaty and which 4 — See Commission Regulation (EEC) N o 3418/83 of 28 therefore cannot be regarded as lawful. November 1983 laying provisions for the uniform issue and use of the documents required for the implementation in the Community of the Convention on international trade in endangered species of wild fauna and flora (OJ 5 — See the judgment in Case C-48/89, Commission v Italian 1983 L 344, p. 1). Republic [1990] ECR I-2425.