C-510/99

OPINION OF MRS STIX-HACKL — CASE C-510/99

OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 6 February 2001 1

I — Introductory remarks Fauna (hereinafter 'CITES') was opened for signature on 3 March 1973. The purpose of that convention is to protect certain endangered species of wild flora and fauna by regulating international trade in them. 1. In this case the Tribunal de Grande To achieve its objectives, the Convention Instance de Grenoble (Regional Court, imposes a number of restrictions and Grenoble) (France) has referred two ques- controls. tions for a preliminary ruling. By them, the national court would essentially like to know whether the Washington Convention on International Trade in Endangered Spe- cies of Wild Flora and Fauna (CITES), two Community regulations and Articles 30 and 36 of the EC Treaty allow a Member State to take measures prohibiting at any time and in the whole territory of that State 3. CITES contains several appendices. any commercial use of specimens of wild Appendix I applies to all species which species born and bred in captivity. are threatened with extinction and, conse- quently, subject to the strictest rules. Appendix II applies, first, to all species which may be threatened with extinction unless trade is subject to strict regulation and, second, to other species which are to be subject to strict regulation.

I I — Legal framework

A — International law 4. Under Article VII(4) of CITES, speci- mens of an animal species included in Appendix I which have been bred in captivity for commercial purposes are to 2. The Convention on International Trade be deemed to be specimens of species in Endangered Species of Wild Flora and included in Appendix II. Article XIV(l) provides that the provisions of the Con- vention are in no way to affect the right of 1 — Original language: German. Parties to adopt stricter domestic measures

6. Article 6 contains general prohibitions: (a) improvement of conditions of survival of living specimens in recipient coun- tries;

'(1) The display to the public for commer- cial purposes and the sale, keeping for sale,

2 — OJ 1982 I. 384, p. 1. (b) the conservation of native species;

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(c) the conservation of a species or a the provisions listed in Annex B. Annex A population of a species in the country corresponds to Appendix I to CITES and of origin. Annex B corresponds to Appendix II to that convention.

9. Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulat- ing trade therein 3 replaced Regulation (EEC) No 3626/82 with effect from 1 June 1997. It was adopted with the objective of improving the protection of species of wild fauna and flora, taking account of scientific 3. In accordance with the requirements of knowledge and the structure of trade. other Community legislation on the con- servation of wild fauna and flora, exemp- tion 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 10. Under Article 7 of that regulation, save specimens are located, on a case-by-case where Article 8 applies, specimens of spe- basis where the specimens: cies listed in Annex A that have been born and bred in captivity or artificially propa- gated are to be treated in accordance with

3 — OJ 1997 L 61, p. 1.

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(d) are captive born and bred specimens of ditions and criteria for the consideration of an animal species or artificially propa- permit and certificate applications and for gated specimens of a plant species or the issue, validity and use of such docu- are parts or derivatives of such speci- ments. Specific provisions apply to captive mens; or born and bred, or artificially propagated, specimens.

13. Article 32 provides for the following exemptions:

3. the destruction, spoiling or impairment of the habitats of those animal or plant C — National law species;

14. The provisions of the French Code rural (Countryside Code) on the protection of flora and fauna permit the adoption of measures which are stricter than those expressly provided for in international and Community law. The Code also applies to the species of macaw which are the subject-matter of these proceedings. Prohibitions on keeping species made under paragraphs 1 or 2 of this article shall not apply to specimens which are being law- fully kept when the prohibition relating to 15. Article L.211-1 of the Code rural pro- the species to which they belong enters into vides as follows: force.'

'Where a specific scientific interest or the 16. Article L.211-2 provides: requirements of preserving the living heri- tage justify the conservation of species of wild animal or plant, the following shall be prohibited:

'A decree made after consultation with the Conseil d'État shall determine the condi- tions under which the following are estab- 1. the destruction or removal of eggs or lished: nests, the mutilation, destruction, capture or removal, intentional disturbance or preservation by taxidermy of animals of those species or, whether they are living or dead, the transport, door-to-door sale, use, keeping, offering for sale, sale or purchase 1. An exhaustive list of the species of wild thereof; animal or plant thus protected;

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6. the rules to be followed by establish- ments authorised to keep or to rear outside 19. The national provisions governing the their natural environment specimens of penalties for failure to comply with the species mentioned in Article L.211-1(1) and (2) for the purposes of conservation and reproduction of those species; 5 — JORF 25 June 1986, p. 7884.

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Community regulations are set out for the with a certificate of fitness to breed parrots, relevant period in a decree of 1 March except macaws, cockatoos and waxbills. 1993. Article 3 of that decree provides in essence that keeping for sale, transport for sale, offering for sale, purchase and use for commercial purposes of specimens listed in Appendix I to CITES require authorisation by the minister responsible for the protec- tion of nature ('ministre chargé de la 22. By Order No 96-6815 of the Prefect of protection de la nature'). Article 4, which Isère of 11 October 1996, Mr Tridon was applies to specimens listed in Appendix II, authorised to open an establishment for provides for the relevant authorisation to breeding species of wild fauna (parrots, be granted by the Préfet (Prefect) of a except macaws, cockatoos and waxbills), Département. In both cases, no authorisa- which was not open to the public. tion is required if certain documentation is produced. However, such exemption does not apply to activities which are prohibited under Article L.211-1 of the Code rural.

23. A further certificate of fitness to keep parrots (without restriction as to species) and waxbills was issued to him by Order of the Minister for the Environment on 16 October 1995.

25. In the criminal case against him, 2. With effect from 1 June 1997, must the Mr Tridon is charged with several offences, provisions of the Convention on Inter- in particular the sale of protected species of national Trade in Endangered Species fauna. of Wild Fauna and Flora (CITES), in particular Articles VII and XIV thereof, Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein, and Articles 30 and 36 of the EC Treaty be interpreted as allowing a 26. The defendant in the main proceedings Member State to take or maintain raises doubts as to whether the Ministerial domestic measures prohibiting at any Decree of 15 May 1986 is compatible with time and in the whole territory of that provisions of Community law and CITES. State any commercial use of captive born and bred specimens of wild spe- cies occurring in the wild in all or part of the territory of that State?'

27. The Tribunal de Grande Instance de Grenoble refers the following questions to the Court for a preliminary ruling:

V — Preliminary remarks

30. The national court is not only seeking 33. However, according to the case-law of the interpretation of provisions of the the Court, the provisions of the Treaty must Treaty; its questions primarily concern the apply to national rules even if in practice interpretation of regulations. However, the they are not applied to imported goods following analysis refers only to the parts because they may have effects which hin- of the questions which relate to the der, indirectly or potentially, intra-Commu- Treaty. 6 nity trade. 10

34. Furthermore, it cannot in principle be 31. With regard to the facts of the case, it ruled out that birds which are the subject- must be noted that both Mr Tridon and the matter of proceedings may be imported purchaser of the macaw are resident in the from another Member State, in which case same Member State, that is to say, all the the French legislation would apply to particular elements at issue are confined to them. 11 a single Member State. 7The goods which are the subject-matter of the main proceed- ings also originate in the same Member State. Accordingly, the facts are set in a purely national context. Nevertheless, a 35. Finally, the procedure provided for in national measure may have effects on the Article 177 of the EC Treaty (now Arti- movement of goods between Member cle 234 EC) is 'an instrument of coopera- States even in a situation where all the tion between the Court of Justice and the

39. The two questions should be answered 36. It is settled case-law that it is for the separately according to category of species national court before which the dispute has of fauna, taking as the starting point the been brought to determine in the light of classification in CITES, which forms the the particular circumstances of the case basis of the annexes to the regulations. both the need for a preliminary ruling and Appendix I to CITES, which was incorpo- the relevance of the questions which it rated in Regulation (EEC) No 3626/82, submits to the Court. Consequently, where corresponds to Annex A to Regulation the questions submitted by the national (EC) No 338/97. Appendix II to CITES, court concern the interpretation of Com- which was incorporated in Regulation munity law, the Court of Justice is, in (EEC) No 3626/82, corresponds to principle, bound to give a ruling. 13 Annex B to Regulation (EC) No 338/97.

37. Moreover, it is not obvious in the present case that the interpretation of Articles 30 and 36 of the EC Treaty (now, after amendment, Articles 28 EC and 30 EC) bears no relevance to the subject- matter of the main proceedings. 14 Further- 40. Determining to which annex the birds more, it does not seem obvious either that at issue in the main proceedings should be such an interpretation is not necessary for assigned is not a matter covered by the the national court. 15 questions and concerns the practical appli- cation of the regulations, for which the national court has jurisdiction.

38. In such circumstances the questions referred must also be considered in the light of Articles 30 and 36 of the EC Treaty.

A — Species covered by Appendix I 44. Several parties have commented on the Court's judgment in Vergy 16 in that regard. The French Government and the Procureur de la République take the view that that 42. As is correctly pointed out by the judgment is not relevant, in particular French Government, the Commission and because it was delivered in relation to a the Procureur de la République, Regulation different act, namely Council Directive (EEC) No 3626/82 expressly provides for a 79/409/EEC of 2 April 1979 on the con- number of prohibitions'in respect of species servation of wild birds. 17 That directive covered by Appendix I to CITES. Although governs only wild species, and not the that regulation provides for a possibility of specimens born and bred in captivity which derogation in respect of specimens bred in are the subject-matter of these proceedings. captivity, this is merely a discretionary Mr Tridon and the Commission have also power conferred on the Member States. If pointed out that the directive examined in the Member States do not make use of that Vergy applies only to wild species. power, the prohibition remains in force.

Against that background, no further con- 50. First it should be examined whether the sideration need therefore be given here to French legislation and regulations pursue the judgment in Vergy. one or more of the purposes mentioned in A r t i c l e 15 of R e g u l a t i o n (EEC) No 3626/82, such as the improvement of conditions of survival of living specimens or the conservation of native species or of species in the country of origin. In my view, 47. Mr Tridon is of the opinion that the it is clear from the substance and purpose comprehensive national prohibition of alone of the Code rural and the ministerial trade and transport is contrary to the decrees that they pursue the purposes set principle of free movement of goods. As out in Article 15 of the regulation. regards the conditions concerning the treat- ment of specimens born and bred in captivity, Mr Tridon refers to the detailed provisions of Commission Regulation (EC) No 939/97, and in particular Articles 24, 34 and 36 thereof. 51. As to whether the French legislation and regulations comply with the Treaty, this point must be considered in the light of Articles 30 and 36 of the EC Treaty. In this respect the French provisions must fulfil two requirements: there must be justifica- 48. As regards the view put forward by tion for the measures taken and such Mr Tridon, which is essentially based on measures must be proportionate. the mechanism established by Commission Regulation (EC) No 939/97, it should first be noted that that regulation did not come into force until 1 June 1997, that is to say, only after the expiry of the period of validity of Regulation (EEC) No 3626/82. 52. It should first be pointed out that Article 36 of the EC Treaty permits Mem- ber States to adopt or maintain measures where they are justified on specific grounds which are exhaustively listed. Such grounds also include the purpose pursued in this 49. Several parties have rightly referred to case, which is the protection of the health A r t i c l e 15 of R e g u l a t i o n (EEC) and life of animals. 18 There is therefore No 3626/82. Under that provision, Mem- surely no need to rely on the ground of ber States are expressly permitted to main- protection of the environment, which, tain or take stricter measures. However, moreover, could be taken into considera- they are restricted to doing so for specific tion only in the context of Article 30 of the purposes which are exhaustively listed. In EC Treaty. addition, that provision expressly requires Member States to 'comply with the Treaty, and in particular Article 36 thereof'. 18 — For those protective purposes, see Case C-67/ 9 7 Bluhine Finally, Member States must immediately [1998] ECR I-8033, paragraph 37, and Case C-131/93 Commission v Germany [1994] ECR I-3303, para- inform the Commission of such measures. graph 17.

55. In my view it is obvious that such a comprehensive prohibition is at least suita- ble to promote the achievement of the pursued objective of protecting the health and life of animals.

Finally, the French Government points out 19 — Case C-3/99 Cidrerie Kuwet [2000] ECR I-8749, para- that effective controls are not feasible and graph 50, Case C-131/93 Commission v Germany [1994] ECR I-3303, paragraph 26, and Case C-126/91 Yves that there are, in any case, many ways of Rocher [1993] ECR I-2361, paragraph 12. circumventing the law. Thus, in particular, 20 — Case C-124/97 Läärä and Others [1999] ECR 1-6067, paragraph 41. it is almost impossible to monitor exports

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from Guyane on account of the topogra- say the health and life of the bird species phical conditions. covered by Appendix II.

57. The Commission, on the other hand, considers essentially that it does not have 61. According to the Court's case-law, the sufficient information at its disposal to danger of extinction of one species of fauna justify an absolute prohibition on trade. It may even justify prohibiting the keeping of proposes a certification procedure as an another. 22 No definitive assessment can be alternative measure. made here as to whether, in a comparable way, prohibition of the commercial use of captive born and bred specimens of a particular species of fauna helps to protect wild specimens of that species.

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63. Account must also be taken of the fact the view that an absolute prohibition is that the national provisions laying down lawful. However, it refers at the same time the prohibition establish a system compris- to the possibilities of exemption envisaged ing individual exemptions, granted subject by Article 32 of Regulation (EC) to conditions,24 and Article L.211-1 of the No 939/97 in respect of captive born and Code rural and the Ministerial Decree of bred specimens. 1986 each seem to permit prohibitions which are appropriate.

67. At the hearing, Mr Tridon expressed the view that the provision of Article 8 of 64. Finally, it should be considered whether Regulation (EC) No 338/97 concerning the other measures would be much more costly, application of the prohibition also to if not entirely impossible to implement. 25 captive born and bred specimens of species covered by Appendix I conflicts with Arti- cle 7 of that regulation which provides that such specimens are to be treated as speci- mens of species covered by Appendix II.

V I I— The second question

68. It should be observed in this regard 65. With regard to the secondary legisla- that, although Article 7(1) (a) of Regulation tion, the second question refers to the (EC) No 338/97 provides that such speci- Community legal situation as from 1 June mens are to be treated as specimens of 1997, that is to say, to Regulation (EC) species covered by Appendix II, it expressly No 3 3 8 / 9 7 and R e g u l a t i o n (EC) derogates from that rule where Article 8 No 939/97. applies.

71. The fact that, as the Commission pointed out at the hearing, the exemption provided for in Article 8(3) is a provision of a regulation, and not of a directive, makes no difference. On the contrary, it merely confirms the power of the competent authority of the Member State concerned to apply the exemption (directly). 74. Article 32 of Regulation (EC) No 939/97 provides for exemptions in respect of two categories of live animal species. The first category concerns captive born and bred specimens of species listed in Annex VIII to Regulation (EC) No 939/97 and marked in accordance with Article 36 72. According to the Court's case-law, of that regulation. derogations from general provisions are to be interpreted restrictively. 27 This also applies to Article 8(3) which provides for a derogation from the general prohibition contained in Article 8(1).

75. The second category concerns speci- mens bred in captivity which are marked in 73. In addition to the derogating provision accordance with Article 36(1) of Regula- of Regulation (EC) No 338/97, there is also tion (EC) No 939/97 and accompanied by a derogation in Article 32 of Commission a certificate referred to in Article 20(3)(e) of that regulation, issued to a breeder by a competent management authority of a 26 — Winch clearly states: 'peut être dérogé'. Member State. Therefore, if those two 27 — See, on tins point, as examples or the Court's consistent case-law on the restrictive interpretation or derogations. requirements are met, the prohibition laid Case C-287/98 Linster [2000] ECR I-6917, paragraph 49, and Case C-328/91 Timmas [1993] ECR I-1247, para- down in Article 8(1) of Regulation (EC) graph 8. No 338/97 does not apply.

77. Referring to the third recital in the preamble to the regulation, the French Government assumes that the regulation allows more stringent measures to be taken by Member States. As regards specimens covered by Appendix II, the French Gov- 80. As regards compatibility with the ernment makes no distinction between the Treaty, reference may be made to the old and the new legal situation, and there- observations on the first question concern- fore its observations on Appendix II must ing the species covered by Appendix II. also be applied to the legal situation established by Regulation (EC) No 338/97.

However, in this regard it must be ensured 78. It should first be pointed out that the that the protective measures applicable to regulation in question was based on Arti- specimens of species covered by Appendix cle 130s of the EC Treaty (now, after amendment, Article 175 EC). Thus, in principle, Article 130t of the EC Treaty 28 — The third recital leads: "... the provisions of this Regulation (now Article 176 EC) applies. Under that do not prejudice any stricter measures which may be taken or maintained by Member States, in compliance with the provision, protective measures adopted Treaty,...'.

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II are not more stringent than those applic- Appendix I must also be applied to speci- able to specimens of species covered by mens of the species covered by Appendix II. Appendix I. This means that, at the very However, the same is not the case with least, the exemptions provided for in the exemptions the application of which is at regulations in respect of species covered by the discretion of the Member State.

whole territory of that State any commercial use of captive born and bred specimens of wild species, provided that such a measure is necessary for effective protection and that such protection cannot be achieved by means of less restrictive measures.

(2) The answer to the second question should be that, as regards species covered by Appendix I, Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein and Commission Regulation (EC) No 939/97 of 26 May 1997 laying down detailed rules concerning the implementation of Council Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein are to be construed as meaning that they allow a Member State to prohibit at any time and in the whole territory of that State any commercial use of captive born and bred specimens of wild species.

That does not apply to the following two categories of living specimen:

— captive born and bred specimens of species listed in Appendix VIII to Regulation (EC) No 939/97 and marked in accordance with Article 36 thereof, and

— captive born and bred specimens marked in accordance with Article 36(1) of Regulation (EC) No 939/97 and accompanied by a certificate referred to in Article 20(3)(e) thereof, issued to a breeder by the competent management authority of a Member State.

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